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Marijuana is legal: Can job applicants be denied if they smell like weed? What about using marijuana on ‘break’?

What happens if a person goes to work and smells like marijuana? It might seem like a silly question, but employment law experts are weighing in now that cannabis has been legalized in New York. The state’s recreational marijuana law is being ironed out now, even though its passage and signing into law meant that the criminal components of possessing or using small quantities went away immediately.

Legal experts are explaining to clients and business owners that under the existing law, businesses don’t have as much wiggle room to decide whether they want to employ someone based on use of marijuana.

What do employers think about new recreational marijuana laws?

Many employers are split. While some worry about the impact of having impaired workers in stores, shops, and other places – some see it as one less thing to worry about.

“If it’s legal my liability is ultimately going to be reduced,” one Finger Lakes area business owner explained. “Whether intentional or not, if a person comes in and has a bad experience because an employee partakes in marijuana before the start of a shift – I can point to the law.”

That business owner runs a coffee shop and gift store. “There’s no risk of injury to customers as result of the person being impaired, if they do smoke or consume marijuana before they come to work. So that part gives me a little relief. I’m not sure how others would deal with that situation if there was risk.”

While that ‘risk’ wasn’t addressed by any of the small business owners recently spoke with – there were concerns about productivity.

“Are workers going to be as productive?” asked one small business owner from Ontario County. They spoke with on condition of anonymity. “I don’t know the answer to that question – and it’s probably one that has to be answered on a case-by-case basis. But it’s certainly a valid one.”

Employers simply don’t have a lot of wiggle room or recourse under the law. Here’s a look at some of the essential questions that have come up in recent weeks.

DiSanto Propane (Billboard)

Can prospects or workers be turned away because they smell like marijuana?

For example, the smell of marijuana lingers, and attorney Christine Taylor, a partner at Towne Law Firm, says some businesses could get in trouble if they choose not to employ someone based on that odor, or the associated assumption that the individual is using.

“The smell does linger, but that’s not probable cause anymore,” she explained. “It was the knee-jerk reaction to be like, you obviously are using, I don’t want to employ you anymore, and that can absolutely kind of get you in trouble now.”

She’s been hosting educational seminars where she advises employers on how to move through the rapidly changing laws.

The state Department of Labor prohibits employers from testing for marijuana.

“Marijuana stays in your system for so long, but now for example, some people had a policy that if someone was hurt on the job, you immediately have to go for a drug test and if you had flagged for marijuana, they would immediately fire you,” she explained. “You can’t do that anymore, because just testing positive for marijuana in your system is no longer good enough.”

That doesn’t mean safety standards have gone away though. As the details are worked out, experts like Taylor, are advising clients to document as much as possible. Another piece of good advice on this front: Don’t make any snap judgments.

“Some of the symptoms perhaps of impairment could overlap with some of the symptoms of some disabilities and you want to be careful with that,” Taylor continued.

DiSanto Propane (Billboard)

What about using marijuana on break time at work?

“There’s no ‘weed-free offices’,” Taylor explained. “You can’t restrict what people are doing in their personal time.”

However, the catch is that ‘breaks’ and ‘lunch’ are not considered personal time. At least not in terms of the recreational marijuana laws in New York. “Breaks and all of that are still considered work time so to speak, so yes, [employers] can be like no you cannot bring marijuana into this office.”

Federal jobs and transportation jobs with special license requirements are still a caveat in the existing recreational marijuana laws. Pre-legalization standards are still in place here.