New York Has the Opportunity to Get Marijuana Legalization Right

By Theodore F. Shults, MS, JD | March 1, 2021

For the third year in a row, Governor Andrew Cuomo and legislative leaders have proposed their own version of adult-use marijuana legalization. The timing of this effort gives New York the opportunity to fully consider the impact of legalization on employers and employees. When cannabis use is illegal, workplace drug testing rules typically enforce zero-tolerance policies. But when marijuana is legalized, it is no longer practical, logical, nor fair to enforce zero-tolerance policies.

This latest attempt gives New York’s policy makers the opportunity to lead the rest of the country by fundamentally changing the dynamics of workplace marijuana testing, refining the rules so that employers can meet their safety obligations while also respecting employees’ rights to legally use marijuana during non-working hours. Product offerings are currently available that focus on the elusive cannabis impairment issue, which employers have both a right and a duty to manage, as long as it is done in a legal and responsible manner.

Unsurprisingly, statistics clearly show that after legalization, positive tests for marijuana at work increase significantly.[1] The problem is smoking cannabis interferes with motor functions and perceptions of memory and time which creates risk for employers if employees are using before or during working hours. Unlike with opioids or alcohol, where tolerance develops to many behavioral effects over time, recent use of THC causes impairment regardless of whether the individual is a new or chronic user.

Conventional workplace drug testing methods – urine, oral fluid (saliva), and hair – only indicate that an employee has used marijuana sometime in the past, anywhere from 10 minutes to over six months prior to the test. As a result, a positive result does not specifically identify recent use – shortly before or while at work. So, employers who rely on conventional tests will quickly find them outdated once their employees have legal access to marijuana. Employers may therefore end up terminating employees who test positive, but legally and responsibly used marijuana last night, last week, or even last month.

This is a case where new rules require new tools. There is a consensus among experts that smoking marijuana has a significant, time-based impact on human performance that and lasts up to three hours after smoking.[2]

Thus, the critical question employers need help answering is “did the individual recently use marijuana?”

Up until recently, that question was difficult, if not impossible, to answer. However, published empirical data now shows that THC can be measured in breath for just three hours after use by utilizing new ultra-sensitive technologies.[3] A breath-based test will be a game changer for all involved as it gives the employer verifiable evidence of recent use, and the user assurance that they are not being tested for legal use during off-work hours.

With this technology now in the fold, New York legislators, working with Governor Cuomo, have the opportunity to include state-of-the-art technology into the Budget by facilitating the use of breath-based testing tools that only identify recent marijuana use. And, with other states in the northeast corridor following New York’s lead, the positive implications for employers and employees will be even more far-reaching.

With a little more than a month until the budget deadline, lawmakers should take advantage of this opportunity to add breathalyzer technology and finally correct one of the single largest issues with legalizing cannabis – balancing the need for marijuana drug testing while also treating employees fairly.

Without writing laws that address the downstream impacts of legalization, employers in New York will be unable to continue marijuana drug testing in a manner that maintains current safety levels, protects employees’ rights, and recognizes the legal status of marijuana.

Theodore F. Shults JD, MS is a forensic toxicologist and Chairman of the American Association of Medical Review Officers. Mr. Shults was as practicing New York attorney from 1984-2021 and is a technical consultant to Hound Labs, Inc.