On October 8, 2021, the New York State Department of Labor (“NYDOL”) issued new guidance, largely in the form of Frequently Asked Questions (the “Guidance”), reflecting employment protections provided to cannabis users under the Marijuana Regulation and Taxation Act (“MRTA”), which was signed into law on March 31, 2021.  As noted in a recent Cannabis Business Times article in which we were quoted, the FAQs are precedent-setting in prohibiting employers from testing applicants and employees for cannabis use altogether, except in very limited circumstances.

As we reported, the MRTA amends Section 201-d of the New York Labor Law (“NYLL”), which has long prohibited employers from discriminating against an employee based upon the employee’s lawful outside, off-duty work activities.  Specifically, the MRTA amends this Section of the NYLL to expressly include the use of “cannabis in accordance with state law” as a lawful outside work activity.  As a result, the MRTA instituted anti-discrimination protections for cannabis users and confirmed that employers are now prohibited from discriminating against applicants and employees based solely on the applicant’s and employee’s legal use or possession of cannabis products while off duty and outside of the workplace.

Drug Testing Applicants and Employees for Cannabis

Notably, the statutory language of the MRTA does not prohibit drug testing for cannabis.  Within the Guidance, however, the NYDOL confirms that New York employers may not test applicants or employees for cannabis unless one of the below limited exceptions apply:

• An employer is required to conduct such testing by state or federal law. The FAQs clearly state that an employer is not permitted to conduct cannabis drug testing simply because it is allowed or not prohibited under federal law.  Such testing can only be undertaken when there is an affirmative obligation under state or federal law for the employer to test the applicant or employee (for example, in the case of a Department of Transportation regulated position);
• The employer would otherwise be in violation of federal law or would lose a federal contract or federal funding; or
• The employee, while working, manifests “specific articulable symptoms of cannabis impairment” (as defined below) that decrease or lessen the employee’s performance of the employee’s tasks or duties or interfere with the employer’s obligation to provide a safe and healthy workplace. Importantly, the FAQs state that a cannabis drug test cannot serve as a basis for an employer’s conclusion that an employee was impaired due to cannabis use.

Identifying “Specific Articulable Symptoms of Cannabis Impairment”

As set forth above, employers are permitted to conduct cannabis drug testing when the employee, while working, manifests “specific articulable symptoms of cannabis impairment” that either: (1) decrease or lessen the employee’s job performance or (2) interfere with the employer’s obligation to provide a safe and healthy workplace.  Further, an employer is permitted to take an adverse employment action against an employee for cannabis use, provided the aforementioned criteria is met as well.

The MRTA does not define “impairment” and the Guidance acknowledges that there is “no dispositive and complete list of symptoms of impairment.”  The Guidance does provide that “specific articulable symptoms of cannabis impairment” are “objectively observable” indications that the employee’s job performance is decreased or lessened.  As an example, the Guidance explains that operating heavy machinery in an unsafe or reckless manner could be an articulable symptom of impairment.  The Guidance, however, cautions employers that objectively observable indications of impairment could “also be an indication of a disability[,]” which implies that employers should be careful before taking an adverse employment action or conducting drug testing because of presumed cannabis impairment.

Significantly, the Guidance emphasizes that the smell of cannabis, on its own, does not qualify as a “specific articulable symptom of cannabis impairment.”  Indeed, the Guidance is clear that only symptoms that objectively indicate that “the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited” as a “specific articulable symptom of cannabis impairment,” which then allows the employer to conduct cannabis drug testing or take an adverse employment action against the employee.  In short, some stereotypical indications of cannabis use alone, such as odor or red eyes, are not “specific articulable symptoms of cannabis impairment.”

Given the ambiguity of what constitutes as a “specific articulable symptom of cannabis impairment,” New York employers are strongly encouraged to speak with legal counsel prior to conducting any cannabis drug testing based on presumed cannabis impairment.

Cannabis Use or Possession During Work Hours or on Company Premises

The Guidance reiterates that employers may prohibit cannabis use during working hours, which for purposes of the MRTA means, “all time, including paid and unpaid break and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time that the employee is actually engaged in work.”  The Guidance notes that working hours also includes periods during which an employee is on-call.

Further, the Guidance states that employers are allowed to prohibit employees from bringing cannabis onto the company’s property, including “leased and rented space, company vehicles, and areas used by employees within such property (e.g., lockers, desks, etc.).”  For remote employees, the Guidance states that the employee’s private residence being used for remote work is not a “worksite” within the meaning of Section 201-d of the NYLL.  Therefore, an employer cannot prohibit a remote employee from using or possessing cannabis at his or her home and, instead, may only take action against an offsite remote employee if the employee exhibits “specific articulable symptoms of cannabis impairment” during work hours.

Overall, New York employers, which includes employers that are not based in New York but have employees in New York, should review their substance-free workplace policies and drug testing policies (if applicable) to ensure compliance with the Guidance.  New York employers should also highly consider training employees tasked with enforcing substance-free workplace policies to assess what constitutes “specific articulable symptoms of cannabis impairment.”