On October 8, 2021, the New York State Department of Labor (“NYSDOL”) issued “Frequently Asked Questions” (“FAQs”) to address common situations and questions relating to the legalization of adult-use cannabis and its effect on the workplace. The FAQs largely restate information already outlined in the Marijuana Regulation and Taxation Act (“MRTA”), which was signed into law on March 31, 2021 and legalized recreational use of cannabis in New York State for adults over the age of 21. The FAQs also set forth some new key considerations for employers, including the NYSDOL’s position that drug testing for cannabis use is prohibited except under narrow circumstances.

Recap of the MRTA’s Amendments to NYS Labor Law Section 201-d

As explained in our earlier alert, the MRTA amended NYS Labor Law Section 201-d (“Section 201-d”) to prohibit employers from refusing to hire, employ, or license; to discharge from employment; or otherwise discriminate against an employee because he/she uses cannabis lawfully outside of work hours, off the employer’s premises and without use of the employer’s equipment or other property.

The MRTA also amended Section 201-d by adding new subsection 4-a, which permits employers to take action against an employee or prohibit conduct where:

• The employer is or was required to take such action under state or federal statute, regulation, ordinance, or other state or federal government mandate;
• The employee, while working, manifests specific articulable symptoms of cannabis impairment that: (a) decrease or lessen the employee’s performance of his/her duties or tasks; or (b) interfere with the employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law; or
• The employer would be in violation of federal law, or lose a federal contract or federal funding.

Drug Testing for Cannabis

While Section 201-d and the MRTA do not explicitly address whether employers are permitted to drug test for cannabis, the FAQs make clear that employers cannot drug test for cannabis unless permitted to do so pursuant to Section 201-d(4-a) (see previous section) or other applicable laws. The FAQs also clarify that employers cannot drug test for cannabis merely because it is allowed under federal law, but are permitted to do so if federal or state law requires drug testing or makes it a mandatory requirement of the position. Employers should therefore review their existing drug testing policies and practices to ensure compliance with the NYSDOL’s position that employers are only permitted to drug test for cannabis under limited circumstances.

Articulable Symptoms of Impairment

One of employers’ most commonly asked questions relates to the meaning of “articulable symptoms of impairment” under Section 201-d(4-a). The FAQs unfortunately do not provide a definition, but state, “[t]here 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.” As an example, the FAQs provide, “the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.”

Despite the lack of clarity as to the meaning of “articulable symptoms of impairment,” the FAQs outline what employers may not cite to as an articulable symptom of impairment. The FAQs state, for example, that “[o]nly 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.” In other words, observable signs of cannabis use (e.g. blood shot eyes), without any observation of decreased or lessened performance by an employee, should not be cited to by employers. The FAQs unsurprisingly also specify that the smell of cannabis, on its own, cannot be used a basis for articulable symptoms of impairment.

Further, the FAQs make clear that a positive test for cannabis use cannot serve as a basis for articulable symptoms of impairment considering there is currently no test capable of demonstrating present impairment.

Given the task of determining whether an employee is impaired in the workplace is not always a simple one, employers should ensure that managers and supervisors are trained on how to make objective observations of articulable symptoms of impairment, and importantly, how to properly and consistently document such observations.

The Prohibition of Cannabis Use At Work Or During Work Hours

The FAQs reaffirm that employers may prohibit the use of cannabis during “work hours,” which includes paid and unpaid breaks and meal periods, and even covers when the employee physically leaves the worksite. Importantly, “work hours” for these purposes also includes time that an employee is on-call or “expected to be engaged in work.”

Additionally, the FAQs reiterate that employers may prohibit employees from bringing cannabis onto their property, including leased and rented space, company vehicles, and areas used by employees such as lockers and desks. With respect to remote employees, however, the FAQs explain that the NYSDOL does not consider an employee’s private residence a “worksite” for purposes of Section 201-d. Employers may nevertheless take action against a remote employee if he or she exhibits articulable symptoms of impairment during work hours.

Other Noteworthy Points

The FAQs address a number of other situations and questions that employers should be aware of:

• The Section 201-d protections do not apply to non-employees. This includes students who are not employees, independent contractors, and volunteers. Further, Section 201-d does not protect individuals under the age of 21 considering cannabis use by such individuals is illegal under State law.
• Further, the Section 201-d protections only apply to employees employed within New York State. The FAQs explain that an employee working remotely in another state, for example, would not be protected by the law.
• Employers are not required to rehire former employees who were terminated due to their use of cannabis prior to the State’s legalization of cannabis.
• Employers are not permitted to require employees to waive their rights to Section 210-d as a condition of hire or continued employment (i.e. employers cannot require that employees promise or agree not to use cannabis as a condition of employment).

While the FAQs provide some helpful information and clarification relating to the legalization of adult-use cannabis and its impact on the workplace, there are still open and unanswered questions. Harris Beach Labor and Employment attorneys can help New York State employers – both public and private – navigate these new changes to the law. Services include staff training, reviewing and updating policies, and providing counseling on various employment issues.