Weed and work: Lawyer says marijuana testing boils down to common sense


ROCHESTER, NY (WROC) — This week, new guidelines on marijuana use in the workplace were put out by the State Department of Labor. In the new protocols, employers have to look hard at observable signs that an employee’s job performance is impacted by legal marijuana use. 

For those 21 and older, recreational marijuana use was legalized in-state back in March. In addition to a worker’s performance when it comes to testing, workplace safety is also looked at here, which needs to show a negative impact from someone’s marijuana use. 

To test workers, employers need to observe quote, ‘articulable symptoms of impairment’ to take action against an employee in terms of testing for pot. Attorney Peter Pullano with Tully Rinckey PLLC says the guidance gives employers a sense of what happens now that marijuana is legal.

“As you review some of the things that are put out there, it’s very similar to alcohol,” he says.

In this employers cannot restrict marijuana use outside the workplace, and any prior policies banning marijuana to hire someone, are not permitted. Much of this he says– common sense. 

“Don’t do it at work. Whatever you’re doing at home is different,” he says adding, “Marijuana has joined that list of legal substances that employers have to–on the one hand, keep an eye out for it, you don’t want an employee under the influence, and on the other hand, respect your employee’s rights because it’s legal conduct when it’s done at the proper place and time.”

Employers can still prohibit marijuana use during work hours. Madison Fulton works at the Blu Wolf Bistro. She says this is about people knowing themselves, and knowing how well they can handle substances.

“I just think you have to take into account what your job is, and say if you’re working from home versus if you’re working in a public setting,” says Fulton.

When it comes to the new testing rules, Fulton says it’s a good balance between use and responsibility.  “That’s okay as long as the employer has substantial evidence that it’s affecting your productivity in the workplace,” she says.

If someone had to be tested for marijuana, Pullano says testing is ‘behind the curve’ since many tests show pot in someone’s system for up to 30 days. On the other hand…”You may not need a drug test. If your employee is showing signs of being high,” he says.

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