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Kassandra Frederique, state director for the Drug Policy Alliance, spoke in favor of legalizing marijuana in New York during a rally at the state Capitol on Tuesday, March 26, 2019. Joseph Spector, Albany Bureau Chief

Complex legal fights over drug use by workers in the 31 states with legal medical marijuana, including New York, and 10 with recreational pot have already been playing out across the country.

New York’s recreational marijuana battle sits on the front line of a generational war over American cannabis laws. As debate heats up, USA TODAY Network New York is compiling answers to key questions about legalized cannabis.

Lawmakers are poised to prohibit New York City employers from drug-testing job applicants for marijuana use despite the state’s recent failure to legalize recreational pot.

The marijuana-screening ban, which excludes jobs in health care, construction and other fields such as child care based on safety concerns, underscored the controversial crossroads of cannabis and workplace reforms.

New York City Council members passed the anti-drug-testing legislation and Mayor Bill de Blasio is considering signing it into law, a first of its kind in the country, experts say.

Meanwhile, state lawmakers have renewed debate over legalizing marijuana use for adults after Gov. Andrew Cuomo’s unsuccessful push to pass it in the state budget.

Yet complex legal fights over drug use by workers in the 31 states with legal medical marijuana, including New York, and 10 with recreational pot have already been playing out across the country.

What follows is an analysis of New York state law connected to marijuana use and employment, as well as the USA TODAY Network’s ongoing investigation of the issue across the country.

POLITICS: What to know about anti-pot lobbying, pharma, alcohol and tobacco

SAFETY: What to know about drugged driving

CONSUMER: What to know about marijuana potency, pesticides, testing trials

REFORM: Medical, recreational marijuana fates linked in NY

Working impaired

Thousands of medical marijuana users currently in New York are protected against workplace discrimination for legally using cannabis-based drugs under state law.

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In some ways, that legal protection ends when the workday begins.

For example, employers can fire someone who is working while impaired by marijuana, according to New York’s medical marijuana law.

“Employers are allowed to prohibit marijuana use at work and allowed to prohibit employees from reporting to work impaired,” said Geoffrey Mort, a member of the New York State Bar Association’s Cannabis Law Committee.

Yet enforcement is difficult because marijuana shows up on drug tests long after its impairing effects subside, Mort said.

There haven’t been any court cases challenging the legal marijuana at work issue in New York, however, despite several in other states testing the limits of drug use by workers.

Federal courts in Connecticut and Arizona, for instance, have sided with medical marijuana users who sued for wrongful termination or discriminatory hiring practices, according to Mort.

The cases marked a key turning point from a prior high-profile case in Colorado, where state courts ruled a business was allowed to fire a quadriplegic with a medical marijuana card for failing a drug test.

The emerging trend protecting workers’ medical marijuana use could end decades of state and federal courts siding with employers, while also laying the groundwork for similar cases involving recreational pot.

Further, the legal upheaval is unfolding amid ongoing efforts to improve drug-testing accuracy for medical cannabis and recreational pot.

“There is not only legal work but scientific work to do because…the mere fact that somebody tests positive means nothing more than on a Saturday night two weeks ago they may have smoked a joint,” Mort said.

City and state laws

At the state government level in New York, Cuomo’s recreational pot legislation would protect adult marijuana users from employment discrimination.

Basically, it would require an employer to prove that lawful use of cannabis impaired the worker’s ability to perform job responsibilities.

The employment section, just a handful of sentences in the 200-plus page cannabis legalization bill, would protect against wrongful termination along with pay and hiring discrimination.

It doesn’t specifically ban the pre-employment marijuana screening like New York City’s groundbreaking proposal championed by marijuana legalization advocates.

“This…legislation means we aren’t shutting out thousands of people from the work force for the private decision to use marijuana, which I hope to see legalized and regulated in New York State soon,” NYC Council Speaker Corey Johnson wrote on Twitter.

Federal versus state

Still, both the state and city marijuana-use employment protections exclude jobs and contracts tied to federal government, an acknowledgement that federal law classifies marijuana alongside other illegal drugs like heroin.

In several recent cases, however, courts have ruled against employer attempts to use federal law to justify firing, or not hiring, workers for testing positive for medical marijuana, Mort said.

The breakthrough cases come after decades of precedent for what is called preemption, or the notion that federal law trumps state when conflicts arise, such as marijuana legalization, said Mort, who is a lawyer based in Manhattan specializing in workers’ rights.

He cited the Connecticut case that involved a federal judge determining the Controlled Substances Act, which regulates marijuana, didn’t say anything specific about employment law, leaving the matter up to state laws.

“It’s basically a criminal statute and therefore there is no preemption,” Mort said.

Marijuana, drug and alcohol at work

Marijuana tops the list of the most commonly detected illicit substances across all workforce drug tests, and its use has grown as more states legalize recreational pot, according to Quest Diagnostics, which offers drug-testing services.

The rate of marijuana positives in urine-based drug tests in the American workforce hit 2.8% in 2018, up from 2.4% in 2014, a new Quest study shows.

“As marijuana policy changes, and employers consider strategies to protect their employees, customers and general public, employers should weigh the risks that drug use, including marijuana, poses to their business,” said Barry Sample, senior director, science and technology for Quest.

Quest reviewed 10 million workplace drug test results as part of the study.

It also found that 5.3% of retail workers tested positive for any type of illicit drugs in 2017, up from 4.7% in 2015, and the highest of any job sector, USA TODAY Network reported. 

The Quest sampling suggests that about 837,000 of the 15.8 million retail workers across the U.S. would have tested positive if all had been checked.

Other industries with high percentages of workers testing positive for drugs include health care and social assistance, where 4.7% tested positive, and accommodation and food services, which includes hotels and restaurants, where 4.5% of workers had positive results.

A survey from DrugAbuse.com, which offers educational content and recovery resources to people dealing with addiction, found that 23% of U.S. workers responding to the survey say they have used drugs or alcohol on the job, USA TODAY Network reported.

Roughly 6 in 10 say they have used alcohol at work, outside of office parties or functions, while nearly 23% say they’ve smoked pot on the job.

Workers in safety-sensitive jobs, such as truck drivers, construction workers and forklift operators, are subject to drug tests because of laws, regulations or insurance requirements. 

State laws vary, but companies are typically required to inform employees or applicants of the policy, USA TODAY reported. 

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