In October, the New York Department of Labor (DOL) published frequently asked questions (FAQs) regarding adult use of cannabis and the workplace which is “intended to address some of the most common situations or questions in the workplace related to adult-use cannabis and the Marijuana Regulation and Taxation Act (“MRTA”)”.
In March, the MRTA was signed into law and legalized the recreational use of marijuana for adults ages 21 and older. The passage of the legislation also added legal use of cannabis outside of work hours and off the employer’s premises to the list of protected off duty conduct under Section 201-d of the labor code and affirmed cannabis use cannot be the basis for discrimination in hiring and other employment decisions.
What Are the Key Highlights of the Guidance?
The DOL has now added a new subsection (4-a) to Section 201-d, which provides that employers may take employment action or prohibit employee conduct based on the following specific circumstances:
- An employer is/was required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate,
- The employer would be in violation of federal law,
- The employer would lose a federal contract or federal funding,
- The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties, or
- The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer.
The guidance does affirm that employers can prohibit the use of cannabis in the workplace, even during meal and break periods as those times are considered work hours, even if the employee leaves the worksite. Further, employers may prohibit possession of cannabis in the workplace, and the guidance defines the workplace to include leased and rented space, company vehicles, and areas used by employees within such property (e.g., lockers, desks, etc.). The guidance does not consider a remote workers private residence to be the workplace; however, an employer’s policy about impairment during working hours may be applied and employers may take action if a remote worker is exhibiting articulable symptoms of impairment during work hours.
What Are Articulable Symptoms?
The guidance does detail specific behaviors or symptoms that would be deemed articulable, rather it provides that those types of behaviors that may be indicative of an impairment must be weighed in conjunction with indications that the employee’s performance of their job duties are decreased or lessened based on an objective observation. Symptoms alone will not be deemed to indicate an impairment and employers will need to place a great deal of focus on the employee’s performance.
The guidance further acknowledges that this may be a thorny issue for which advice from legal counsel should be sought as certain behaviors could also be attributable to a disability versus an impairment, regardless of whether the disability is known or unknown to the employer.
Can Employers Still Drug Test?
The guidance explicitly states that employers cannot test for cannabis even though it may be permitted under federal law unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-d (4-a) or other applicable laws such Department of Transportation regulations. The guidance’s explicit prohibition is likely based on the premise that a positive test for marijuana cannot be used as a basis for articulable symptoms of impairment because there is no test currently capable of indicating present intoxication.
What About NYC Law?
New York City (NYC) employers should also note that NYC prohibits employers from administering pre-employment drug tests for marijuana, but the law has exceptions for safety-sensitive positions and jobs that require drug testing under federal and state law.
It is recommended that employers consult with their legal counsel to understand their obligations under state and local law, particularly as they relate to the implementation of existing or modified substance abuse policies in the workplace.
Next Steps for Employers
Employers are encouraged to review the guidance in its entirety as it further addresses the applicability of the law, permissible workplace policies and prohibited discrimination.
Employers who are not required to test for cannabis because of a state or federal statute, regulation, ordinance, or other state or federal governmental mandate should remove cannabis from their drug screen panels. Other marijuana testing (i.e., post-accident or reasonable suspicion) may also require more attention, and employers should review the law against their substance abuse and/or drug testing policies and make changes as needed, including deciding whether to test for marijuana at all.
Employers should remind employees of any existing prohibitions on marijuana use, possession and impairment during working hours, on employer premises and while using company equipment or other property.
It is also recommended that employers develop documentation to assist with helping managers/supervisors determine what symptoms may indicate an impairment and to ensure that the company’s practice for making this determine is applied consistently. Further managers/supervisors should receive training on substance abuse and its interaction with applicable state laws and related company policies.