Q: I am the President of mid-sized company on Long Island which has a zero-tolerance drug policy which includes prohibiting the use of marijuana. We also randomly test employees during the course of the year. I recently read an article about a Manhattan Senator pushing a bill to make marijuana legal for recreational use in New York State, and was wondering how it would affect me if passed. Would I have to adjust my employee drug policies to exclude marijuana?
A: First, the law legalizing marijuana for medical use does not go into effect until June 2015, so there will be plenty of time to prepare and adjust in advance of a law that permits the sale and use of marijuana on a recreational basis. However, to be forewarned is forearmed. Right now, and for the foreseeable future, the use of marijuana is a crime under federal law. When the day comes that recreational marijuana use is permitted under New York law, much like smoking tobacco under present law, it will be a lawful activity. As such, an employee’s use of marijuana on his/her own time would not be an offense for which the employee could be terminated. But, and there is a big but, as marijuana use is still illegal under federal law, and businesses must abide by that law as well, a conflict will emerge that we cannot answer at this point. Also, if your business is one where the public’s safety is involved, like a trucking or bus company, the use of marijuana violates U.S. Transportation Department regulations and is prohibited by an employer. As for other businesses, there are several cases being decided in connection with Colorado law that may shed some light on how New York companies should deal with this issue in the future. Until then, stay tuned.
Paul Millus is of Counsel to Meyer, Suozzi, English & Klein, P.C. and practices in the Litigation and Employment Law Departments located in both Meyer Suozzi’s Garden City, Long Island and New York City Office. Mr. Millus has been involved in all aspects of state and federal litigation throughout his legal career handling a variety of litigated matters from inception, motion practice, trial and appeals.