Inability to Test for Marijuana Use Threatens Small Business Owners


The Department of Labor has released new regulations prohibiting New York employers from testing employees for marijuana use. (Courtesy of Flickr)

Brian Pfail, Contributing Writer

The Department of Labor has released new regulations prohibiting New York employers from testing employees for marijuana use. Employers cannot test employees unless they display signs of intoxication or marijuana use while at work. Employers can test for marijuana if the state or federal law requires it for that particular position. 

The Marijuana Regulation and Taxation Act (MRTA) amended Section 201-D of the New York Labor Law to reflect the state’s legalization of cannabis. Employers may take action if the employee “manifests specific, articulable symptoms of cannabis impairment” while working that impedes performance or obligations.

The MRTA details “articulable symptoms of cannabis impairment” as “objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened.” This phrase is a clear example of the typical legalese of politics — clear enough to legislate, yet vague enough for people to misunderstand or misconstrue. The problem here is that there is no such thing as “objective indications.” Viewing someone’s impairment is purely subjective. The individual could have many conditions attributing to an appearance of impairment like lack of sleep, an adverse effect to medications or simply having an “off” day. 

The MRTA cautions employers regarding indications that may be part of a disability. Employers are then referred to local, state and federal laws regarding disability discrimination. The risk of disability discrimination due to the MRTA is a huge threat to business owners. Are our representatives trying to scare private companies out of business?

Oddly enough, employers cannot drug test even if they view the individual to be impaired under the guidelines of the MRTA. The employee is protected even if they have an odor of cannabis. The MRTA should have detailed more examples of when the employer can drug test, rather than listing a plethora of reasons why employers can not. The MRTA did not specify, nor include, examples of possible impairments, leaving many wondering if lawmakers fully thought through this decision. 

“This is the start of more progression for the marijuana movement,” says Carol Johnston, a representative of the prominent cannabis dispensary chain Curaleaf. But when asked about the dangers of such subjective guidelines, she wasn’t so sure. “Our representatives are listening. It may be trial and error before we get it right,” said Johnston. 

How much “trial and error” will it take and at what cost? It is time we question what the true priority is here: cannabis freedom or overarching governmental control over private businesses?

The MRTA does refer to state and federal occupational safety and health laws. Nonetheless, this new regulation allows more freedom of interpretation and more liability on the part of employers. The private sector should fight back against the new terms or risk being subject to a sizable increase in their insurance premiums. Lawsuits of discrimination will likely increase due to the subjectivity of these new regulations. Alongside discrimination claims, businesses will have to be extra cautious with workers who operate machinery and heavy equipment.

It would be more justifiable if testing was allowed during work hours since there currently is no objective metric to determine one’s level of marijuana intoxication. We don’t want any accidents in the workplace, nor do we want lawsuits against private businesses, especially when the economy is at such a low.

This amendment should be reflected only in the federal or state sector. Private companies have a right to know if their employee is under the influence and a right to terminate the individual if the company sees fit. Government overreach encumbers private businesses, especially small private businesses, from success. Small business owners should not have to worry about whether their employees are sober and fit for the task. The same treatment toward alcohol and other controlled substances should be applied to cannabis. Those with a medical cannabis license should be the only ones to abide by the new MRTA guidelines. This is the pragmatic and logical choice. 

New York may have been too eager to legalize cannabis only because legislators should have worked out these particulars before legalization. Now we have private businesses trying to figure out how to manage cannabis alongside an unstable economy during a pandemic. 

Legislators have yet again failed to protect those they claim to be fighting for.

Brian Pfail, FCLC ’22, is a communications major from Ronkonkoma, N.Y.