texaslawyer . com ❘ May 18 , 2022
Proliferation of Laws Providing Employment Protections for Marijuana Users Complicate Businesses ’ Efforts to Maintain Occupational and Public Safety
BY ROBERT S . NICHOLS AND AMBER K . DODDS
On the afternoon of Jan . 4 , 1987 , the crew of a Conrail locomotive traveling near Baltimore failed to respond to stop signals and hit an Amtrak train traveling from Washington , D . C ., to Boston . Fourteen passengers on the Amtrak train were killed . Postaccident testing revealed that both the Conrail locomotive engineer and brakeman had been using marijuana .
This tragedy was part of the impetus for U . S . Department of Transportation ( DOT ) regulations mandating drug and alcohol testing for various categories of transportation employees .
At the same time , for the vast majority of workers holding safety sensitive positions throughout the United States , these mandatory transportation industry testing requirements are inapplicable . Whether employers of safety sensitive workers , outside of transportation industries , even have the right to test workers for marijuana use or prohibit marijuana use altogether is a function of state , and occasionally local , laws .
While Texas has no laws limiting employers ’ rights to conduct marijuana testing or prohibit employees from using marijuana altogether , other states , such as New York and New Jersey , have recently enacted laws substantially tying the hands of employers — even in the case of recreational use — with respect to marijuana use prohibitions and testing for positions not subject to DOT testing requirements .
For Texas businesses operating in multiple states , the adoption of state laws limiting employer actions has complicated their efforts to assure their employees are not impaired by marijuana use .
State Law Protections for Marijuana Use
In March 2021 , the New York Marijuana Regulation and Taxation Act became effective . This act not only legalized recreational cannabis use but also prohibits employers from discriminating against workers for using cannabis outside of the workplace and outside of work hours .
The New York Department of Labor then issued guidance in October 2021 concluding that the act
Workmen survey the damage from the collision between an Amtrak passenger train and three Conrail diesel engines , in Chase , Maryland , on Jan . 4 , 1987 .
effectively prohibits employers from testing for marijuana except when required by federal law , another New York law , or in the very limited circumstances where an employee , while on duty , exhibits “ specific and articulable symptoms of cannabis impairment .”
The rationale for concluding that marijuana testing is generally unlawful in New York is that test results do not distinguish between whether
Photo : J . Scott Applewhite / AP