Opinion Mondays: NY Recreational Marijuana Law Could End Most Post-Injury Cannabis Testing

For some time now, in many states, when a worker has sustained a work-related injury requiring treatment at an emergency department or hospital, he or she typically has had two preliminary expectations: first, that in most cases, he or she would receive excellent medical treatment on a cost-free basis, and second, that he or she would likely undergo a blood alcohol test as well as an additional test for the presence of cannabis in his or her system. Following the recent enactment of recreational marijuana legislation in New York and New Mexico—16 states have now approved the use of recreational weed—as noted below, such routine post-injury testing for cannabis in most of those 16 states should soon be rare.

The New York Legislation

On March 31, 2021, New York Gov. Andrew Cuomo signed S.B 854, the “Marihuana Regulation and Taxation Act” (MRTA), making New York the 15th state [today, April 12, 2021, New Mexico became the 16th], along with the District of Columbia, to allow recreational use of a drug that is still illegal under the federal Controlled Substances Act.

Widely publicized reports have highlighted some of the law’s primary characteristics. Among its provisions, the new law:

• Removes cannabis from the list of controlled substances in the state.
• Allows cannabis to be smoked or used in public by persons 21 years and older, in any place where tobacco use is also allowed.
• Prohibits the smoking of cannabis in schools, workplaces or inside a car. In New York City, it will be banned in parks, beaches, boardwalks, pedestrian plazas and playgrounds, where tobacco smoking is already banned. Smoking is generally permitted, however, on sidewalks in the city.
• Allows for possession of up to 3 ounces of cannabis and 24 grams of cannabis concentrate and allows Empire State residents to grow up to six plants at home.
• Expunges the criminal records of tens of thousands of persons who had earlier been convicted of some common marijuana-related charges.
• Is expected—hoped?—eventually to pull in billions of dollars in revenue for both the State of New York and for New York City, with a hefty 13 percent tax on sales (9 percent at the state level and a 4 percent local tax).
• Includes a “potency tax” of as much as 3 cents per milligram of THC, the natural psychoactive component of cannabis.
• Steers some 40 percent of tax revenue from cannabis to minority communities that have had disproportionate numbers of marijuana arrests.

Legalization of cannabis is effective immediately, although legal recreational sales under the law are not expected to begin for more than a year.

Potential Boon to State’s Economy

One estimate from the governor’s office predicts annual tax revenues from legal sales of marijuana could be as high as $350 million annually. State government officials have also touted the creation of 60,000 jobs across the state when the cannabis industry is fully established.

Boon to Existing Medical Marijuana Industry/Quigley Decision

For at least three reasons, the new law is seen by many to be a significant win for New York’s existing medical cannabis industry.

1. Prior to the new law, a relatively small number of diseases and conditions qualified for medical marijuana use [e.g., AIDS, cancer, epilepsy, some cases of chronic pain]. Now, medical practitioners will have the discretion to recommend medical marijuana for virtually any condition, without the concern that they are counseling patients to break the law.
2. The recent decision by the Appellate Division, Third Department, in Matter of Quigley v. Village of E. Aurora, 2021 N.Y. App. Div. LEXIS 1223 (3d Dept. Feb 25, 2021), had already settled the legal issue of whether workers’ compensation carriers could be required to reimburse injured workers for medical marijuana [for my discussion of Quigley click here]. Without this roadblock, one would expect more reimbursement claims to follow.
3. The roll-out of recreational marijuana will likely require some commercial “infrastructure.” Firms already in the medical marijuana industry should have a head start in establishing recreational distribution and sale operations.

Will Illegal Sales Continue?

Critics of the legislation argue, inter alia, that the new taxes on marijuana sales and the reduced penalties on illegal sales could combine to produce unintended negative consequences, as the relatively high price of legal marijuana could be easily undercut by those trading illicitly.

Recreational Pot in the Workplace

Under the new law, New York employers may still establish policies that prohibit marijuana use and possession within the workplace. Screening is going to be an issue, however. Note that even before the law, pre-employment screening for marijuana was prohibited in New York City. That prohibition seems now effectively to be state-wide.

Technically speaking, under the new law, an employer can still take action against an employee if the employee is impaired by use of cannabis. Pursuant to the MRTA, an employee is “impaired” when:

the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law.

The devil’s in the details here. I expect case-by-case litigation over what is meant by “specific articulable symptoms.” It won’t be sufficient in my non-medical opinion to say, “Ed was acting funny.”

Effect on Injured Workers

The bill requires that an injured worker using medical cannabis must receive the same protections afforded other injured workers using prescription drugs.

The bill is much less clear on post-injury testing. I think a reasonable reading of the bill indicates an employer may not take disciplinary action against an applicant or an employee based solely on a positive test for marijuana or cannabis. There must be some evidence of impairment, in addition to the medical finding. This is why, as I noted above, employers will likely dispense with routine, post-injury cannabis tests. It won’t be enough to order the test, get the positive result, and then contend that the employee was impaired. There will have to be some evidence of impairment to support the test itself.

Inherent Difficulties in Cannabis Testing

I’m no medical expert, of course, but I understand that there is a significant difference between blood alcohol testing and testing for cannabis. In the case of the former, the test doesn’t just show the presence of alcohol in the blood stream; it shows the actual level. Tests that indicate a level of above 0.08 can generally be used to show impairment. Such is not the case with cannabis. While the test can show that cannabis is present within the system, it’s essentially a binary test. Since there can be no showing as to the actual level, the positive test—now that recreational marijuana is no longer illegal—won’t mean much in defending the claim. The injured worker could have smoked a joint last night at home, which might explain the positive test.

The employer will need to have some evidence of actual impairment. Generally speaking, corroborating evidence from co-workers or videotape will be required in most cases.

Substance or Alcohol Abuse Programs

One matter appears to be particularly unclear under the new law. The bill gives some lip service to the continued ability of employers to take employee action pursuant to established substance or alcohol abuse or workplace safety programs. Again, however, if residential pot use is no long illegal, it is difficult to understand how an employer might use cannabis testing to police any such drug or alcohol abuse programs within the workplace. One New York colleague indicates the state will likely roll out some administrative rules on this issue.

Bill Puts the Joint on Same Footing as the Cocktail

In summary, my reading of the New York bill indicates that, from an employer’s standpoint, the marijuana joint and the cocktail are to be treated on the same footing. The fact that the New York employee had two highballs last night, while playing poker with friends, has long been deemed to be irrelevant for most employment purposes. With the new law, the worker could add some marijuana without giving the employer the right to pry into his or her personal life. I am not implying that many employers used post-injury drug tests as “gotchas.” To the extent that an employer did order post-injury tests, hoping to uncover some evidence of drug use, I think those days are gone.

If you disagree, let me hear from you.