Photo by Adobe Stock/Kemedo
As a new state law takes effect, Westchester workplaces are navigating the legal, HR, and cultural impact of legalized cannabis. But it’s more likely to bring opportunity than disruption.
Over the past 18 months, employers across Westchester have had one issue on their minds: COVID. As the pandemic spread across the county (and world), local businesses had to manage shutdowns, supply chain disruptions, layoffs, and a host of other challenges. Who had time to think of anything else?
But it was beneath this cloud that a major new development took place. One that, under any other circumstances, would likely have kept local employers busy: the relationship between marijuana and the workplace. On March 31, 2021, New York State governor Andrew Cuomo signed legislation legalizing cannabis use for adults 21 years and older.
“Right now, everybody is so focused on the pandemic, that this flew by without people paying attention to it,” explains Greg Chartier, a longtime human-resources consultant who works with small- and midsize businesses across Westchester. “We’ve been waiting for it to happen, but the timing was a surprise — right in the middle of COVID.”
Of course, a segment of the population was “paying very close attention,” says Robert Guidotti, a principal at Jackson Lewis, a law firm specializing in employment law with offices in White Plains. Now, as the pandemic recedes, staff return to offices, and many New Yorkers seek to celebrate the end of a gloomy lockdown, a much larger swath of employers are turning their attention to marijuana and the workplace — and wondering what’s in store.
Tweaking the HR handbook
The idea of employees openly using marijuana outside of work may seem strange, but the new law won’t disturb HR departments too much.
“The impact is minimal,” Chartier explains. “Most decent-sized organizations have policies that deal with the use of drugs and alcohol at work. And so, the policy just gets extended a little bit.”
From a legal perspective, there isn’t much uncertainty either. Bryan Meltzer, a partner at Feuerstein Kulick, explains that “most employee handbooks already account for alcohol use and drug use on work premises.” Feuerstein Kulick specializes in the cannabis space and has offices in New York City and White Plains.
“The biggest thing is going to be communications,” Meltzer adds, noting that employers will need to be clear that marijuana may be legal but still isn’t welcome in the break room. “Just because you’re 21, doesn’t mean you can bring a bottle of vodka to work and consume it.” Same goes for rolling a joint in the conference room.
A relevant existing law is New York’s Off-Duty Conduct Law, which prohibits employers from discriminating against employees for legal activities outside of work — like activism, alcohol consumption, and now, marijuana usage. But there are caveats, Chartier explains: “You can’t smoke in the building; you can’t smoke on the grounds.”
Despite HR and legal precedents, legalization does present some complications. “The big issue is going to be impairment,” Chartier says. “Are you able to do your job safely? You don’t want the forklift driver, or the guy who drives the tractor trailer, smoking pot on his way to work.”
For example, an employee may use marijuana at home but still be high when they arrive at the office, store, warehouse, or factory. This is complicated by the range of marijuana options out there — and the range of reactions an individual can have. “You have different strains of cannabis that can do different things,” explains Dr. Diana Martins-Welch, a palliative-care physician with Northwell Health who chairs its Medical Cannabis Workgroup. Some strains are more likely to induce paranoia and anxiety, she says, while others provide a more sedate effect. “And, of course, every user is different,” she adds.
“The big issue is going to be impairment. Are you able to do your job safely?”
— Greg Chartier, Human-Resources Consultant
To address impairment issues, Chartier says employers will start mentioning marijuana when advertising “safety-sensitive” jobs. These jobs “have a higher level of concern about drug and alcohol abuse than other jobs,” he explains.
Another complication? Drug testing. “Something like 80 percent of employers do pre-employment drug testing,” Chartier says. Prior to the new law, New Yorkers who tested positive for marijuana would fail their drug tests. But no more. “I would say that pre-employment, random, and post-accident drug testing for cannabis are things of the past in New York State for employers who are not subject to Department of Transportation or other federal testing requirements,” says Guidotti.
And despite legalization, drug test policies will remain the same for some New Yorkers, like federal employees. “The New York State law doesn’t exempt those people,” Chartier explains.
(Slowly) changing attitudes
Cannabis legalization doesn’t only impact rules and regulations; it can shift cultural perceptions too. Going forward, Westchester workers must also navigate workplace norms and attitudes about pot. Just because it’s legal doesn’t mean your officemate wants to smell it on your jacket or hear about your favorite edible. According to a 2019 Pew Research poll, about one-third of Americans still oppose legalization.
Martins-Welch says many New Yorkers are still apprehensive even about medical cannabis. “I have a lot of reluctance among my patients,” she says. “The majority of my patients are older, and many people are from a generation that views cannabis as a gateway drug.”
Despite this opposition, Chartier doesn’t anticipate much workplace drama in the months ahead. “The odds of [workplace conflict] happening are small,” he says, “unless it’s a really unusual workplace,” like a highly conservative one, otherwise, “I think it’s a nonissue.”
Alternatively, might marijuana become so ordinary that it’s rolled into office perks, like wellness programs that reimburse staff for dispensary purchases? After all, younger, more progressive companies often host in-office happy hours or even have beers on tap in the lunchroom.
“It’s more likely you’ll see CBD,” Chartier explains, referring to cannabidiol, an active ingredient in marijuana that provides benefits but without a high. “But I don’t think you’ll see THC.” THC, or tetrahydrocannabinol, is the active ingredient in cannabis that gives users a high.
Martins-Welch says recreational legalization will have some impact on medical cannabis users: “It’s going to be easier for our patients to gain access.” But she doesn’t see legalization shifting perceptions overnight. “It’s never been viewed as a medicine in many people’s minds.” Martins-Welch works on destigmatization in her clinic, but “it takes a real shift in thinking,” she explains.
“I would say that pre-employment, random, and post-accident drug testing for cannabis are things of the past in New York State…”
— Robert Guidotti, Principal, Jackson Lewis
New Workplace Opportunities
The legality of CBD products is a bit hazy, but that hasn’t stopped the CBD industry from flourishing in Westchester. So now that marijuana is explicitly legal, new opportunities will follow — like entirely new workplaces.
“New cannabis companies are coming into the market, from the ground up,” explains Meltzer, the lawyer from Feuerstein Kulick. “It’s an industry appearing overnight.” Entrepreneurs in New York can apply for licenses to cultivate, process, distribute, deliver, and sell marijuana, among other things, according to the National Cannabis Industry Association.
“It’s for the most part a progressive industry by its nature,” Meltzer explains — and well paying. “There’s going to be job creation,” and Meltzer adds that labor has played a big part in the cannabis industry in other states, so “unions may play a role in New York.”
“There’s a lot of interest in Westchester,” Meltzer continues. In Peekskill, for example, at least one influential developer is paying attention. “I have some research to do,” Louie Lanza recently hinted when Westchester Magazine asked about future plans in the city.
Don’t expect every downtown in Westchester to have a corner dispensary, though. “Cities, towns, and villages may opt-out of allowing adult-use cannabis retail dispensaries or on-site consumption licenses by passing a local law by December 31, 2021,” reads New York State’s legalization press release from March. Much like some towns keep chain restaurants at bay, some Westchester enclaves may opt to be cannabis-free. “The town and the mayor really exert control,” Meltzer says.