Latham, NY asked in Employment Law for New York

Q: Please see "more information" for full question regarding State vs. Federal Labor Law, and which is binding.

I work for a Fortune 125 Corporation in Upstate New York and they've always done random, suspicionless drug testing. They fire folks based on a positive test for THC. It's a supplemental insurance company, and I just work in policy service.

I noticed lately that NY labor law Section 201-D, sub section 2, SEEMS to block them from firing any employees due to recreational use of Marijuana, now that it's Legalized, outside of Company time. And maybe my Corporation has Lawyers working on it and there's a delay in announcing any policy changes...or maybe they're not telling us for a reason, but the Handbook in its current form, under what it tests for, says: "including marijuana, which remains illegal as a matter of Federal Law."

Since they're invoking Federal Law and I know there's some "Federal vs. State" ambiguity over which has the enforcing power, I'm no longer certain that I'm protected.

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1 Lawyer Answer
V. Jonas Urba
V. Jonas Urba
  • New York, NY
  • Licensed in New York

A: Have you considered "Harmless Error Doctrine"? You could win the battle but lose the war.

Let me explain. You challenge your termination because marijuana use is legal, they tested you with a positive result, and you were fired in my hypothetical scenario. Technically, you might win that argument because you were tested for a substance which may now lawfully flow through your body. But the issue is whether it will affect your mind which could affect your job performance.

Of course your workplace is unionized. And you have been actively involved in the union contract negotiations to make sure that any positive tests for THC do not automatically result in terminations and to assure progressive discipline.

If your workplace is non-union, you are probably "at will" as most employees across the country are. "At will" employees can be fired for a good reason, a bad reason, or no reason at all. If you are "at will" your employer has probably documented legitimate, non-discriminatory reasons such as poor performance or not being punctual to support a legitimate, non-discriminatory reason to let you go. The employer wants to make sure that even if you won on the "technicality" of THC testing, it could still terminate you for other reasons.

So yes, technically you can use marijuana. But you need to make sure you are a top performer. Make sure to keep copies of every single performance evaluation which ranks you among the top. Make sure you are receiving performance awards, bonuses, and promotions. That you are among the very, very top performers. Make sure your services are such that they can not get rid of you because you set the performance bar so high, no pun intended.

Otherwise a good reason, a bad reason, or no reason at all can result in any "at will" employee's job loss at any time, with or without notice.

You may find an attorney who will gladly accept your retainer to sue the employer for testing you on a substance which you can legally have floating through your body. And you may even be awarded nominal damages for improperly or unlawfully testing you. But if you don't get your job back because they documented performance issues will it matter?

If you don't have a union maybe it's time for a call to the NLRB on how to begin organizing.

I suspect a major reason why the law was changed, besides tax revenue and controlling quality and "safety", was because of some draconian criminal laws and lengthy prison sentences for recreational use and distribution. The law was not amended to permit employees to be high at work. Considering how "at will" employees have absolutely no guarantee of continued employment from one day to the next, permitting testing for THC or prohibiting it will probably have almost no effect on "at will" employment in the long run.

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