New York State’s Marihuana Regulation & Taxation Act (MRTA) legalized cannabis for adult recreational use on March 31, 2021.

Marihuana, or marijuana as it’s more commonly spelled, refers to parts of or products from the plant Cannabis sativa that contain significant amounts of tetrahydrocannabinol (THC), the substance that’s primarily responsible for the drug’s effects on a person’s mental state.

According to the U.S. Centers for Disease Control (CDC), recent marijuana use (defined as within 24 hours) directly affects parts of the brain responsible for decision-making, coordination, emotions, and reaction time.

Though “pot” can be smoked, users also eat cannabis-infused foods (edibles) and vape marijuana concentrates. MRTA decriminalizes marijuana in various forms, but subject to rules such as a prohibition against smoking marijuana cigarettes (“joints”) while driving.

Meanwhile, medical cannabis has been legally available since 2014 so long as a NYS-registered healthcare provider certifies that treatment is clinically appropriate.

The Cannabis sativa species also includes hemp, which, although it contains less than 0.3% THC, is still smoked because it contains cannabidiol (CBD), a non-psychoactive chemical.    

THC Breathalyzers

For New York State employers, the confusion surrounding legal marijuana is about more than just botany and biology.

MRTA established a new Office of Cannabis Management (OCM) governed by a Cannabis Control Board, but regulations are emerging around adult-use, medical, and hemp cannabis.

Maybe that’s why so many employers are taking a “wait and see” approach to drug testing, even though THC breathalyzers from companies like Hound Labs are now available.

Plus, among all 50 U.S. states, New York’s marijuana laws provide employees with the greatest amount of legal protection.

What if an employer suspects that an employee is “high”, or under the influence of marijuana, while on the job?

Because THC breathalyzers were not available when MRTA was enacted, the legislation does not contain an employer requirement to administer these tests.

What happens if you test anyway and the test comes back negative?

There could be repercussions. Can you adequately explain why you picked a person, and how your decision had nothing to do with sensitive demographic issues such as race, gender, or age?

You could administer random THC breathalyzers instead, but it can be cost-prohibitive to do so. 

Workarounds and Workplace Policies

Performance-based evaluations might seem like a workplace workaround, but can you count on them? After all, some employees might not demonstrate diminished faculties from smoking “weed”, vaping, or consuming edibles.

Plus, productivity standard are a larger issue. Are you ready to tackle that? You could hire an attorney to develop your company’s “pot policy,” but that’s an investment that might not yield the returns you expect in an unsettled regulatory environment.

Meanwhile, as rules do emerge, you can expect to hear from so-called experts who claim to have all the answers. Yes, no one does.

Legal marijuana and workplace drug testing are important issues for employers and employee safety; however, you can’t make this focus of your business. At Commercial Investigations, we follow developments in this area because this is our business.

Our approach is educational, and we integrate solutions into your existing processes while providing a client-centric, customized approach.

Written by Michelle Pyan