The U.S. Department of Justice last month began a formal process to reclassify cannabis as a Schedule 3 substance. The move will likely alleviate banking restrictions and tax burdens, but it could also make workplace drug testing more tenuous for employers.
The issue of employee drug testing for weed involves a jumble of often conflicting statutes, policies and contracts – and as with many issues in cannabis legalization, experts have significantly different views on the matter.
Among the attorneys, union officials and labor law experts who spoke with NY Cannabis Insider about the issue, some say rescheduling will make it virtually impossible to discipline medical patients for positive THC tests, while others say legal technicalities will maintain the status quo.
“At a high level, if it’s reclassified, the protections are going to be broader and expanded,” said Meredith Cavallaro, an attorney who leads the Employment Practice at Paduano & Weintraub LLP. “It’ll make it harder … to make an employment decision based on someone’s use of marijuana.”
Under New York State law, it’s already illegal for most types of employers to discipline or fire employees – or deny prospective workers employment – if they test positive for THC. Part of the Marijuana Regulation and Taxation Act amended state labor statute to ban employers from discriminating against workers who use cannabis outside of work.
But those protections aren’t as strong or comprehensive as they may appear. State law provides several large exceptions for cases in which employers may legally test workers for THC – and discipline for positive results.
Uncontroversially, employers are allowed to fire workers who are under the influence during work hours. But there is also a wide array of job types for which state law doesn’t protect off-hours cannabis users from discrimination.
Workplaces that are “required to take such action under state or federal statute, regulation, ordinance, or other state or federal government mandate” are exempt. That includes many federal contractors – most of whom are bound by the Drug-Free Workplace Act – and anyone employing positions that require a commercial driver’s license.
In 2020, federal contractors employed about 5 million people in the U.S., according to Brookings Institution data.
These cutouts mean that hundreds of thousands of New Yorkers aren’t protected by state law against workplace policies that ban off-hours recreational cannabis use. But, according to Cavallaro, most of these don’t appear to apply to medical patients, and rescheduling would make it even more difficult to legally justify disciplining an employee who is a registered medical patient.
“You can still test, but you can’t make a decision based on somebody testing positive,” said Cavallaro. “I would expect that [rescheduling] would expand” protections, she said.
Since its passage in 1990, the federal Americans with Disabilities Act has prevented workplaces from creating blanket bans on employing people taking controlled substances to which they were prescribed. This doesn’t apply to Schedule 1 substances – including cannabis – which cannot be legally prescribed under federal law.
But if cannabis is reclassified to Schedule 3 – a classification that includes drugs prescribed to treat anything from opioid addiction to low testosterone – disciplining an employee with a medical card for a positive THC test would violate the ADA, Cavallaro said.
“The only way to be prescribed cannabis is to have an underlying condition – that is an ADA trigger,” Cavallaro said. “By putting an employer on notice that you’ve got this card … you’re simultaneously putting the employer on notice that there’s potentially a disability that would be covered by federal, state or local disability statute.”
The Drug-Free Workplace Act allows employers to generally ban some drugs, even if prescribed, but they also must offer a reasonable accommodation which “would generally involve a modified work schedule so the employee could attend Narcotics Anonymous meetings or a leave of absence so the employee could seek treatment,” according to the U.S. Commission on Civil Rights.
Cannabis-focused attorney Matthew Schweber sees it differently from Cavallaro. Schweber, of Feuerstein Kulick LLP, said that because cannabis is a Schedule 1 substance, all patients in state medical programs receive “recommendations” for cannabis, rather than “prescriptions.” This distinction could prove to be a loophole in the ADA’s application to medical cannabis users.
“Cannabis is not prescribed as the federal law defines a prescription,” Schweber said. “My conjecture is that the rescheduling of cannabis will not affect that, because even if you’re in a state-licensed medical program, you will not have obtained a prescription for cannabis.”
Additionally, Schweber said, New York employers are allowed to drug test employees. Even though state law prohibits disciplining workers for off-site cannabis use, it wouldn’t be difficult for an employer to dismiss a worker because of a positive test, but claim the reason for the firing was poor performance, or something else unrelated to weed.
It’s possible that the move to Schedule 3 will lead to the development of prescription drugs that contain THC, and that employees prescribed to those drugs would be protected under the ADA, Schweber said. But, he said, products currently sold at medical dispensaries lack that distinction.
“The rescheduling of cannabis really doesn’t alter that dramatically,” Schweber said.
Cavallaro, on the other hand, said that the ADA would apply to medical cannabis patients if it’s reclassified to Schedule 3. People have to prove they are living with certain medical conditions to obtain a medical card, many of which are recognized under the ADA. Additionally, New York’s state laws offer protections for an even broader range of conditions.
“If there is an adverse action based on a drug test that shows cannabis for an employee who has a lawful card … that, on its own face, would not be a lawful justification for an employment decision,” Cavallaro said.
David Holland, a partner with the law firm Prince Lobel Tye, also believes that the move to Schedule 3 will remove most legal justification for employers who fire workers for positive THC tests in cases where those employees have an ADA qualifying condition, and a medical cannabis card. But, he added, New York’s medical cannabis program includes qualifying conditions that are not included in the ADA, which means not everyone with a medical card is ADA-protected.
Further, Holland said, if cannabis becomes a Schedule 3 substance, employers will likely not be able to prevent employees with ADA protection and a medical card from bringing cannabis to work. People with pain conditions are often allowed to bring pain medications (including Schedule 2 substances like fentanyl) on-premise as a reasonable accommodation. So, while employers can ban prescription drug use during work hours, they probably can’t create a blanket ban on possessing cannabis at work.
“If it goes to Schedule 3, it becomes a prescription drug, and that’s going to be radically changing how drug policy works,” Holland said. “There should be no problem with being a medical cannabis patient as long as you’re able to perform the duties of your job.”
In December of 2022, Holland settled a case in which he represented a Buffalo firefighter who sued the fire department and City of Buffalo after he was fired for testing positive for THC in 2021, despite the fact that he’s a registered medical cannabis patient. As part of the settlement, the plaintiff, Scott Martin, was reinstated with back-pay and benefits, and given a transfer that he asked for.
“We ultimately settled the case before, I think, the court was about to rule against all the city’s arguments,” Holland said.
In a different case, an employee of the Long Island Rail Road sued LIRR and the state Metropolitan Transportation Authority last year after he was terminated for testing positive for THC when he returned to work following medical leave – although he wasn’t a registered medical patient. However, a judge dismissed that case due to jurisdiction issues.
Although state labor and cannabis laws in New York may not offer as many protections to employees who use marijuana as they seem, changes to state government actions appear to have led employers to relax drug testing policies, said Nikki Kateman, the political and communications director for Local 338 RWDSU/UFCW.
“In our world, we really haven’t seen drug testing in quite some time,” Kateman said. “I think folks kind of changed their policies based on that Department of Labor guidance in 2021.”