7 things employers need to know about marijuana decriminalization

By Sean P. Beiter, Partner | Goldberg Segalla

Despite overwhelming support in the New York State Assembly, efforts to legalize adult recreational marijuana failed during the 2019 budget and legislative session when the senate could not agree on the details of the legalization. This led advocates of legalizing recreational marijuana to put forth a law to decriminalize marijuana in the state.

New York’s marijuana decriminalization law took effect on Aug. 28, 2019, and permits possession of up to two ounces of marijuana without criminal penalty beyond a citation and a fine. The decriminalization law is a first step toward legalizing recreational marijuana, an increasingly likely outcome of the 2020 state budget legislation.

Under the new decriminalization law, possession of up to one ounce of marijuana is punishable by a $50 fine. Possession of more than one, but no more than two ounces of cannabis will be fined up to $200. The decriminalization law also creates a mechanism to expunge the records for some past marijuana convictions. It also allows an individual to possess some marijuana, but it does not legalize the sale, purchase, trade, or growth of marijuana.

While it sounds small, these possession amounts are not insignificant; research suggests that an ounce should yield about 60 hand-rolled cigarettes.

With recreational marijuana legislation in limbo, the New York State Department of Health is poised to reevaluate its reforms that have already expanded greatly since 2017. Expect the expansion of dispensaries, medical professionals who can prescribe medical marijuana, and medical conditions for which it can be prescribed. It seems that if New York will not pass legal adult recreational marijuana in the state, the Department of Health is poised to increase the number of medical marijuana users. Both the Department of Health and prescribing physicians agree that medical marijuana for chronic pain issues is preferable to opioid prescriptions and has helped opioid users transition off of it.

 

Here’s what this means for employers in New York:

  1. Expect to encounter more employees utilizing legal medical marijuana under state law as the Department of Health expands the conditions for when medical marijuana can be prescribed. The number of medical marijuana users in the workplace could expand exponentially if these conditions include anxiety and sleep disorders.
  2. Employers of an employee using the Compassionate Care Act, which provides protection from employment discrimination for individuals utilizing medical marijuana, have a duty to engage in the interactive accommodation process under New York Human Rights Law.
  3. Employers testing employees for controlled substances under federal regulations (i.e., Department of Transportation (DOT) testing of commercial truck drivers) are not impacted by these changes.
  4. Expect a strong push by pro-marijuana legalization forces to pass legal adult recreational marijuana legislation as part of the 2020 budget legislation. It is estimated that New York could raise approximately $300 million in tax revenue once legalization takes full effect.
  5. The heart of the debate over legalizing recreational marijuana is over how the tax revenue will be utilized. Assembly Majority Leader Crystal Peoples-Stokes, the sponsor of the bill to legalize recreational marijuana, has stated that these tax revenues should be earmarked for “communities that have been negatively impacted” by state marijuana laws. These funds are regarded as a form of reparations, which might be utilized for efforts such as additional social and health services to economic development projects in lower-income neighborhoods that have suffered as a result of marijuana incarcerations.
  6. In addition to educating themselves on the legislative efforts to legalize recreational marijuana and protect users from discrimination, employers should support lobbying efforts by groups such as the Buffalo Niagara Partnership to protect their interests as legislative moves forward.
  7. Employers can expect it to be increasingly difficult to maintain a drug-free workplace as medical marijuana use expands, decriminalization encourages recreational marijuana use, and the state considers the legalization of recreational marijuana again in 2020.

 

About the Author
Sean P. Beiter, a partner in Goldberg Segalla’s Employment and Labor and Commercial Litigation and Arbitration practices, concentrates his practice on the area of traditional labor law for private and public sector employers in the health care, public safety, manufacturing, transportation, education, office, professional, blue-collar, and white-collar settings. His practice focuses on counseling employers in the development of comprehensive strategies and approaches for success in labor-management relationships and disputes. Sean routinely earns the recognition of his peers in the legal field, and has consecutively been listed by The Best Lawyers in America for the past decade. He was named Buffalo’s 2016 Labor Law Management Lawyer of the Year, with only a single lawyer in each practice area in a given location earning the distinction. He has also been named to the Upstate New York Super Lawyers list every year since 2012. For more content and future updates, connect with Sean on LinkedIn.