The New York Department of Labor recently published guidance regarding New York’s Marijuana Regulation and Taxation Action (MRTA). Intended to address the recreational use of marijuana by adults, the guidance provides several FAQs related to what employers may – and may not – do in terms of regulating marijuana and the workplace.
As outlined in the guidance, “[e]mployers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.”
Permitted Employer Actions
Employers may take action in select circumstances including:
- 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.
- 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.
Symptoms of Cannabis Impairment
With respect to the “specific articulable symptoms of cannabis impairment”, the FAQs acknowledge that no complete list exists. Instead, they are “objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.” The FAQs further outline that employers may not use drug testing as a basis to determine if an employee was impaired. Further, the smell of cannabis on its own is also not a sign of impairment.
Workplace Prohibitions
Employers are allowed to prohibit the use of cannabis during “work hours” which includes meal or break periods (whether paid or unpaid). This includes periods of time where an employee is on-call. Employers may also prohibit employees from bringing cannabis into the workplace. Interestingly, the FAQs make a distinction that a remote environment would not be considered a “worksite”; however, employers may still take action if an employee is exhibiting signs of impairment during working hours.
Employers may not prohibit cannabis use outside of the workplace and cannot require that employees promise or agree to not use cannabis as a condition of employment.
Drug Testing
The NY DOL clearly states that employers are not allowed to test for cannabis unless permitted to do so under the provisions of Labor Law Section 201-D(4-a) or other applicable laws. The FAQs note that employers can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position (i.e., mandatory drug testing for drivers of commercial motor vehicles).
Impacted employers are encouraged to consult with qualified legal counsel to review their workplace drug policies including their drug testing procedures in light of this prescriptive guidance.