New York and Nevada: A Tale of Two States

As previously reported on Life Science Matters, New York can’t make up its mind when it comes to cannabis legalization. Like Don Corleone said in Godfather III, “Just when I thought I was out…they pull me back in.” Despite a recent “will they or won’t they” dance, proponents of New York’s bill to legalize marijuana for adult use said the bill won’t pass this year. The legislature is still hopeful that a measure expunging criminal records and decriminalizing small amounts of the drug will still move forward in the next week or so. The bill proposed by Senator Elizabeth Krueger would have set up a regulatory framework to legalize the drug and authorize growers, distributors, and retailers. It would have also diverted tax revenue from the drug to several areas, such as areas most strongly impacted by the state’s drug laws.

One of the biggest concerns is public safety as there is no current, accurate method of quickly testing a person’s level of intoxication when on marijuana. Increased and improved training for police would be required and, even then, this could lead to arguments that any findings are subjective, as opposed to objective chemical or breath tests used when testing for alcohol intoxication.

As the legislature was unable to legalize adult use of cannabis, lawmakers will now address legislation sponsored by State Sen. Jamaal Bailey, which would decriminalize it in small amounts and allow for the expungement of past convictions. The legislation would classify the possession of small amounts of marijuana as a violation, rather than a crime, capping fines at $50. It would also result in the automatic expungement of low-level marijuana convictions.

Nevada, on the other hand, moved “all in” on adult use legalization and has even addressed employment discrimination in relation to the use of marijuana. Nevada is the first state to ban employment discrimination due to cannabis use. However, a closer look reveals that this development comes with a large amount of caveats. Nevada Assembly Bill 132, bars most employers from denying jobs to cannabis consumers after drug pre-screenings. However, the bill excluded positions such as police officers, doctors, and those in the transportation and construction industry. While this bill’s passage seems to help people who are seeking jobs, a closer look reveals that this is not the case. Many private companies in Nevada still have strict anti-drug policies for applicants.

However, union workers are not included in this legislation, allowing many companies who hire such workers to require drug free workplaces. As a result, the companies that utilize union labor can refuse to hire anyone who fails to pass a pre-employment screening drug test. The reasoning? Insurance policies. Many insurance companies, especially those that service larger unions and corporations, and that operate nationwide, are subject to federal law. Since cannabis is still illegal at the federal level, many fear they could be prosecuted or subject to large sanctions if they hire and/or insure businesses that employ cannabis users.

Another interesting turn that was not as widely discussed was the bill’s new regulations related to child custody cases and adoption applications. State agencies are now barred from discriminating against applicants who hold valid medical cannabis recommendations. Previously, state agencies could point to such usage as evidence that a parent was unfit to care for a child.

So where does this leave us? Many employers have already stopped drug testing for cannabis use. Those that have not stopped testing are not required to stop testing. The excluded industries remain excluded and many insurance companies or groups with a nationwide reach are still fearful of federal law being used to prosecute or sanction them. In New York, the legislature failed for a third time to try and legalize adult use legislation. Instead, they changed the fine structure for possession of small amounts of marijuana. As anyone who has ever prosecuted a marijuana offense in New York knows, this doesn’t change much, as most marijuana arrests resulted in violation plea deals and fines of $25.

Lawmakers need to realize that this industry is moving forward at lightning speed and that there is a need for thoughtful and inclusive legislation.

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