Legalization will change how companies can address marijuana use with employees

Local News

BUFFALO, N.Y. (WIVB) — For decades, marijuana has been illegal in New York State. Employees could be tested for it, just like other drugs, before starting a job.

But now, the marijuana drug test is a thing of the past in New York.

“Essentially employers can’t test anymore for marijuana, they can’t restrict marijuana use for an employee outside the workplace and there comes an issue of impairment, so is an employee using marijuana, coming to the workplace and then not able to do their job and that’s the big question that has a little bit of ambiguity to it because how do you determine that,” said Peter Petrella, managing editor at Talent Rise, a division of the Aleron group.

He said the only exceptions are companies with federal contracts, like his. They’ll still test because marijuana isn’t legal across the entire country, but he said their approach has changed.

“In the last six months we’ve had a couple situations where we’ve had people either convicted of a marijuana case or tested positive on the drug test for marijuana but depending on the job we’ve actually kind of pivoted in how we look at it,” Petrella said. “If its legal in their state we’ve started to understand that those situations can be worked around and we dont have to be as strict if they’re not working on any of our federal contract type of work.”

So aside from federal contract jobs, people who smoke outside of work can now land the job. But what rules apply in the office?

AJ Baynes is the president of the Amherst Chamber of Commerce.

“You’re dealing with something that has been legalized, you will be dealing with something that may be utilized in the off hours on weekend, people’s vacation time, and those are going to be the challenges, when did they actually use it. No different than alcohol. Someone can leave for a business lunch, they can have a drink and then come back the question becomes are they under the influence at the job site,” Baynes said.

He said employers can prohibit smoking at work and on lunch but they’re going down a slippery slope.

“Unlike alcohol where you have breathalyzer that can show somebody whether how much alcohol they have in their system, we don’t have that for marijuana at this time. Smell is not a reason to tell somebody you think they’re high at work.”

He said if an employer notices someone zoning out or not being productive they could call them in to have a conversation.

Petrella said an employer will often need to make a judgement call to keep everyone in the workplace safe.

“A lot of our customer sites are in manufacturing so if someone shows up and they have to operate heavy machinery that day and they are visibly impaired in some way or even quote the smell test, we have to look deeper to understand if they are impaired because they could be creating a safety hazard at a work site so we have to ultra careful similar to alcohol.”

Baynes said as companies navigate this they’ll be able to share challenges they’re facing and overcome them.

“I think the challenge that every business is having right now is a little more clarity in the law, what they’re allowed to do and what they’re not allowed to do,” he said.

The restriction to test potential employees for marijuana is already in place.

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