Potential pot legalization pushes New York employers into unknown territory

Apr 15, 2019
Originally published on April 10, 2019 5:05 pm

When you walk into Optimax, you instantly hear the buzz of people at work on millions of dollars’ worth of machinery.  

The Victor company is an optical manufacturer known for creating the lenses for the 2020 Mars rover. It’s tough to imagine people using these machines while high. But with legal recreational marijuana a real possibility in New York state, that’s something the folks at Optimax are thinking about now.

“You have to have some rules to meet the expectations of the workforce, to meet from a compliance standpoint, that help make sure people understand their limits and their bounds,” said Ale’ Mendoza, the human resources director at Optimax.

Mendoza said the company has written and unwritten rules about how people conduct themselves at work -- including those who may be under the influence.

“I mean, you can’t capture everything in a manual, or it’ll be a 7-inch-thick book of things that folks will never read or get into,” said Mendoza. “You have to have them part of the process.”

Mendoza said the company handles these situations on a case-by-case basis.

“There’s ADA protections for some cases,” said Mendoza. “There’s no tolerance for other cases. There’s different approaches that need to be taken when you have somebody that you believe that has an issue or has come to work in some kind of way that you don’t think is normal.”

The approach is different at Klein Steel.

“So if someone comes in and they’re under the influence of drugs and drop a 10-ton plate on someone and kill ‘em, and we didn’t know -- but should’ve known -- we’re liable. It’s that simple,” said Mike Young, the president of Klein Steel.

Young has been in that position for about a year. Klein Steel, based in Rochester, sells steel to contractors large and small across the Northeast.

“We’re dealing with steel here, which is heavy and dangerous,” said Young. “I’ve never seen a piece of human skin fight a piece of steel and win.”

As Young walks around Klein’s giant warehouse, some people are tagging massive stacks of steel. Others  

are cutting it. They’re using machines with lasers or high-pressure jets of water. He said bad judgment in this environment puts everyone at risk. He said he saw it happen at a previous job.

“I saw a guy, must have been 20 years ago, almost kill himself,” said Young. “His blood alcohol level was three times the legal limit when we tested him. Not in the state of New York. It was my prior employer. That’s very dangerous. Now, he maimed himself. What if it had been somebody else?”

Klein Steel and Optimax drug test job applicants. If you fail, they won’t hire you. Both companies test employees randomly. If you fail that test at Klein Steel, you’re fired.

Young concedes that if recreational marijuana is legalized in New York, it will complicate the testing process.

“Alcohol impairs your ability for a short window of time and then it disappears from your system,” said Young. “Marijuana impairs your ability for a short window of time, but the residual component of the system stays in your system for much longer. Long after the impairment is gone. That testing, to my knowledge, is not available, and that’s what would be required.”

As a partner in Rochester law firm of Pullano and Farrow, Beth Cordello has worked with employers and employees on labor matters for 16 years, including medical marijuana cases. She said legalization can put employers in an awkward position.

“They’re stuck in the untenable place. Do I face a discrimination suit or do I face accidents in the workplace?”

Cordello said how the law is written that legalizes recreational cannabis will mean everything.

“Let’s say that the statute that passes is silent on the issue that employment is protected, then we’re in unknown territory,” said Cordello.

She said that territory would likely lead to a court challenge.

“The next logical statute to look to would be the lawful activities statute under New York labor law, which says you can’t discriminate against someone for the use of lawful substances off the clock,” Cordello said.

But there’s a catch.

Colorado recently had exactly that case,” said Cordello. “Where their recreational marijuana law is silent on the issue of employment. So somebody sued under the lawful activities statute, and the court determined that since it’s illegal under federal law, their lawful activities statute will not protect people who use that on their own time.”

Cordello said that New York’s judges typically side with the workers in this scenario, but there’s no way to know until there’s a court challenge.

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