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Does legal marijuana spell end of testing for the drug at NY businesses?

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Recreational marijuana is now legal for adults in New York, but that doesn’t necessarily mean the end of testing for the drug in the workplace, experts said.

Although there is nothing in the law that bars companies from testing existing employees or job applicants for marijuana, the statute tweaked New York’s labor law to prevent companies from disciplining workers or not hiring applicants for using pot on their own time.

So while companies can still test for the drug, they can’t use it as a reason to fire people or not hire them.

“Look at this very similar to alcohol,” said Jason Klimek, an attorney who focuses on marijuana business law with Woods Oviatt Gilman in Rochester. “That’s kind of how the law was shaped.”

But there are plenty of exceptions, experts said.

If you work in a job that requires drug testing as part of a federal law or rule, you’ll still get tested and you could face consequences if you fail, said Andrew Bobrek, a labor and employment law attorney with Bond, Schoeneck & King in Syracuse. The list of those jobs is long and includes commercial truck drivers, physicians who prescribe medications, people who work in nuclear power plants and others.

Testing following workplace accidents or involving safety issues will also probably continue.

In many workplaces, it’s possible certain employees will face drug testing and others won’t, Bobrek said.

“It’s not going to be as simple as do we do it or do we not do it,” he said. “It’s not just a blanket approach that all employers are going to take.”

Even though the law doesn’t specifically ban companies from drug testing, employers are likely to review their policies carefully, attorneys said.

Screening as part of the job interview process is especially fraught since a positive test for marijuana can’t be the sole reason for not hiring someone, Klimek said.

Of course, using marijuana on the job is a different matter.

“People are going to say ‘Oh I can get high now,’” said Derrick Hogan, an employment law attorney with Tully Rinckey in Albany. “You’re right, you can, but you know, you gotta be careful when it comes to your job.”

If employees are showing up to work high or marijuana use is affecting their performance, employers can still take action, Hogan said.

“Just because it’s legal doesn’t mean you can’t be fired still,” he said. “Alcohol and smoking cigarettes are legal, but you can’t come to work drunk or smoke cigarettes in the office.”

But employers are probably going to have to adjust their attitudes on marijuana in the years ahead, said Nathaniel Lambright, co-managing partner at Blitman & King in Syracuse, which specializes in workplace law.

For young people growing up now, seeing marijuana use is likely to be as commonplace as alcohol.

“Employers are going to have to keep up with the times if they want people to work for them,” Lambright said. “It’s going to be a challenge if you prohibit a drug that society deems acceptable.”

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