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On October 8, the New York State Department of Labor (NYSDOL)
issued a frequently asked questions document (FAQ)
offering guidance for the workplace related to the state’s
Marijuana Regulation and Taxation Act (MRTA). MRTA, in effect as of
March 31, 2021, legalizes the use and possession of cannabis for
adults 21 years of age or older. Pursuant to MRTA’s provisions,
employers are prohibited from discriminating against employees
based on employees’ use of cannabis outside of the workplace,
outside of work hours and when not using an employer’s
equipment (e.g., company vehicle) or property.
Among other clarifications, the guidance in NYSDOL’s FAQ
identifies the instances when an employer is permitted to take
employment action or prohibit employee conduct, including
where:
- 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.
The FAQ also clarifies that drug testing by employers for
cannabis use is prohibited except in very select circumstances
(e.g., where required by federal or state law, such as for for-hire
drivers of motor carriers). Moreover, the guidance states that a
drug test may not serve as a basis for an employer’s conclusion
that an employee was impaired by cannabis at the time, because
current testing does not measure impairment.
Additional guidance from the FAQ (linked here) is referenced below:
Can an employer take action against an employee for using
cannabis on the job?
An employer is not prohibited from taking employment action
against an employee if the employee is impaired by cannabis while
working (including where the employer has not adopted an explicit
policy prohibiting use), meaning the employee manifests specific
articulable symptoms of impairment that:
- Decrease or lessen the performance of their duties or
tasks - Interfere with an employer’s obligation to provide a safe
and healthy workplace, free from recognized hazards, as required by
state and federal occupational safety and health laws
What are articulable symptoms of impairment?
There is no dispositive and complete list of symptoms of
impairment. Rather, articulable symptoms of impairment are
objectively observable indications that the employee’s
performance of the duties of their position are decreased or
lessened. Employers are cautioned that such articulable symptoms
may also be an indication that an employee has a disability
protected by federal and state law (e.g., the NYS Human Rights
Law), even if such disability or condition is unknown to the
employer.
Employers should consult with appropriate professionals
regarding applicable local, state and federal laws that prohibit
disability discrimination. For example, the operation of heavy
machinery in an unsafe and reckless manner may be considered an
articulable symptom of impairment.
What cannot be cited by an employer as articulable symptoms of
impairment?
Observable signs of use that do not indicate impairment on their
own cannot be cited as an articulable symptom of impairment. Only
symptoms that provide objectively observable indications that the
employee’s performance of the essential duties or tasks of
their position are decreased or lessened may be cited. However,
employers are not prohibited from disciplinary action against
employees who are using cannabis during work hours or while using
employer property.
Can employers use drug testing as a basis for an articulable
symptom of impairment?
No, a test for cannabis usage cannot serve as a basis for an
employer’s conclusion that an employee was impaired by the use
of cannabis, since such tests do not currently demonstrate
impairment.
Can I fire an employee for having a noticeable odor of
cannabis?
The smell of cannabis, on its own, is not evidence of
articulable symptoms of impairment under Labor Law Section
201-D.
Can employers prohibit the use of cannabis during meal or break
periods?
Yes, employers may prohibit cannabis during “work
hours,” which for these purposes means all time, including
paid and unpaid breaks and meal periods, that the employee is
suffered, permitted or expected to be engaged in work and all time
the employee is actually engaged in work.
Such periods of time are still considered work hours if the
employee leaves the worksite.
Can employers prohibit the use of cannabis during periods in
which an employee is on call?
Yes, employers may prohibit cannabis during “work
hours,” which includes the time that the employee is on call
or “expected to be engaged in work.”
Can employers prohibit cannabis possession at work?
Yes, employers may prohibit employees from bringing cannabis
onto the employer’s property, including leased and rented
space, company vehicles and areas used by employees within such
property (e.g., lockers, desks).
For remote employees, can employers prohibit use in the
“worksite”?
The Department of Labor does not consider an employee’s
private residence being used for remote work a worksite within the
meaning of Labor Law Section 201-D. However, an employer may take
action if an employee is exhibiting articulable symptoms of
impairment during work hours as described above and may institute a
general policy prohibiting use during working hours.
Can employers prohibit use when the employee uses a company
vehicle?
Yes, employers are permitted to prohibit use in company vehicles
or on the employer’s property, even after regular business
hours or work shifts.
Can employers prohibit the use of cannabis outside of the
workplace?
No, unless the employer is permitted to do so pursuant to the
provisions of Labor Law Section 201-D(4-a).
Can employers require that employees promise or agree not to
use cannabis as a condition of employment?
No, employers are not permitted to require employees to waive
their rights under Labor Law Section 201-D as a condition of hire
or continued employment.
Are existing policies prohibiting use permitted?
No, unless an exception applies. Employers are encouraged to
update or amend such policies to reflect changes to New York State
law.
We will continue to monitor the state’s implementation of
MRTA for further guidance and provide you with updates as they
become available.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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