Nathaniel M. Glasser, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in HR Dive, in “New York Protects Off-Hours Marijuana Use, Joining Growing List of States,” by Ryan Golden.

Following is an excerpt:

New York joins 14 other states, as well as Washington, D.C., in legalizing marijuana for adult recreational use, according to the National Conference of State Legislatures. The cause for legalization has advanced rapidly in recent years, with voters in four states approving similar measures during the 2020 election cycle alone. …

It is a "significant piece of legislation" that follows a recently enacted New York City law banning employers from testing for marijuana or THC as a condition of employment, said Nathaniel Glasser, member of the firm at Epstein Becker Green. New York, he added, now joins New Jersey as one of only two states to prohibit employers from taking adverse actions against employees who engage in lawful recreational use as well as medicinal use of cannabis.

Although the new state law doesn't prohibit employers in the state based outside of New York City from including marijuana and cannabis on a drug testing panel, "they won't be able to screen out applicants testing positive," Glasser said, which could lead some to reconsider whether the two substances need to be included in screenings. Employers may also need to examine their policies to ensure compliance with the law's impairment standard.

Policy updates could be on the way for a number of employers. A 2019 survey by Paychex found more than one-third of respondents said they were not prepared to manage legal recreational marijuana use in the workplace.

Non-unionized employers in the state may want to look to unionized employers regarding the impairment standard, which has been applied by arbitrators in certain grievance arbitration hearings, Glasser said; "Employers in the unionized context have likely been operating under this set of regulations for some time now, and this law effectively will translate that to a non-unionized context." Unionized employers, he added, "should be looking closely" at their collective bargaining agreements to ensure compliance.


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