On March 31, 2021, Governor Andrew Cuomo signed into law a bill that makes recreational marijuana legal in New York. Anyone over the age of 21 can possess up to 3 ounces of the drug. As far as construction crews, a simple solution seems obvious: make a rule that no one may work while impaired. But the problem's complexity requires a more involved solution.
Due to the state's "Scaffold Law," contractors own liability for gravity-related injuries—even for impaired workers.
"Impairment isn't a defense under the Scaffold Law," said Mike Elmendorf, CEO of Associated General Contractors of New York State, which unsuccessfully attempted to get the Scaffold Law changed due to new marijuana legislation. "We have real, significant concerns, not just about safety, but also because this just adds more liability into a universe for construction in New York where you already have absolute liability. It's a real black hole at this point."
Legal marijuana in construction raises enforcement complications. Cannabis can stay in the bloodstream for weeks, decimating drug test reliability and raising questions regarding employee impairment.
According to construction attorney David Pfeffer, site superintendents bear the weight; they must identify workers who are high on the job and send them home before accidents happen.
Construction companies worry about insurance as well; New York companies pay 30% more than median workers compensation insurance, placing their rates among the highest in the nation. Increasing pressure on construction companies to identify impaired workers could become more intense.
The legislature, courts, and safety organizations must hammer out more details over time, but for now, construction companies struggle to deal with the effects of legal marijuana on employee safety.