Following the legalization of recreational cannabis in New York by the Marijuana Regulation and Taxation Act (MRTA) earlier this year, which we previously reported on, the New York State Department of Labor has issued guidance in the form of FAQs for employers regarding adults’ use of recreational cannabis as it relates to the workplace. Notably, the guidance does not address the medicinal use of cannabis, which is covered by the Compassionate Care Act.

The MRTA amended Section 201-D of the New York Labor Law (NYLL) to clarify that cannabis used in accordance with New York state law is a legal consumable product. The MRTA prohibits employers from discriminating against employees based on their legal use of cannabis outside of the workplace, outside of work hours and when not using an employer’s equipment or property.

Coverage

The MRTA applies to all private and public New York state employers (regardless of size or industry) and employees who are employed within New York. Remote workers working outside New York are not covered. Nonemployees such as students who are not employees, independent contractors, individuals working out of familial obligation, and volunteers are also not covered by the MRTA.

Prohibiting Cannabis Use During Work Hours and on Employer Property

Employees cannot use or possess cannabis during work hours. Work hours is defined broadly to include during paid or unpaid meal or break times, if the employee leaves the work site during the day, during on-call periods, and while the employee is expected to be engaged in work. Employees also cannot use or possess cannabis while on the employer’s property or work sites (including in company vehicles and areas used by employees such as lockers and desks), including after regular business hours. With respect to remote employees, the MRTA does not consider an employee’s private residence to be a work site; however, employers may maintain general policies prohibiting the use of cannabis during working hours and act against employees who exhibit articulable symptoms of impairment during work hours. Employers cannot prohibit the use of cannabis for employees who are on leave unless one of the below-listed exceptions applies.

Exceptions to Legal Use of Cannabis Outside the Workplace

Although employers are generally prohibited from taking adverse action against employees for their use of legal cannabis outside of the workplace and outside of work hours, employers may take action in the following 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 (1) decrease or lessen the employee’s performance of the employee’s tasks or duties or (2) interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.

Importantly, the law does not require an employer to take adverse employment action against an employee based on his or her cannabis impairment on the job, but rather makes it permissible. Employers that terminated employees for cannabis use prior to its legalization are not required to rehire employees.

Articulable Symptoms of Cannabis Impairment

The guidance does not provide a list of articulable symptoms of cannabis impairment but indicates that these symptoms must be objectively observable signs of impairment on their own. Employers are cautioned that these symptoms may also be indicative of disability, a protected status. The guidance provides that operating heavy machinery in an unsafe and reckless manner is an example of an articulable symptom of impairment, but a cannabis odor by itself is not. A positive drug test cannot serve as a basis for an employer to conclude employee impairment because a positive drug test may not always reflect current impairment.

Drug Testing

Drug testing for cannabis is generally not allowed unless one of the above-enumerated exceptions is applicable. Employers can, however, drug test employees for cannabis if federal or state law requires drug testing or makes it a requirement of the position.

Bottom Line

Employers should review their workplace policies to ensure they are up to date and consistent with the MRTA and this new guidance. Employers should also make sure their human resources and management teams understand the law. If you have any questions regarding the use of medicinal or recreational cannabis as it relates to the workplace, please contact a member of our team.