New York State Issues Guidance on Adult Use of Cannabis & the Workplace
As employers will recall, effective March 2021, employers are prohibited from terminating or otherwise discriminating against an employee for their legal use of cannabis outside the employee’s work hours, off the employer’s premises, and without use of the employer’s equipment or property. Recently, the New York State Department of Labor released Frequently Asked Questions (“FAQs”) regarding the application of this new protection to the workplace.
The New York Labor Law already provides several exceptions to the protection of lawful adult cannabis use. Employers may take action against an employee for their legal use of cannabis if:
The employer’s actions are required by state or federal law or if allowing such cannabis use would otherwise be in violation of federal law;
The employer would lose a federal contract or federal funding for allowing such cannabis use;
The employee, while working, manifests specific articulable symptoms of cannabis impairment that decreases or lessens the employee’s performance of the duties or tasks of the employee’s role; or
The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal workplace safety laws.
The FAQs elaborate on the meaning of “articulable symptoms of impairment” and the extent to which employers can take action against an employee based on suspected use of cannabis:
There is no dispositive and complete list of symptoms of impairment that justify employer action due to suspected cannabis use. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of their duties is decreased or lessened. For example, the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.
The FAQs caution that some signs of possible impairment may also be indicative of an undisclosed disability, so employers should consult with counsel on the best way in which to question employees who show signs of possible impairment due to cannabis use.
Observable signs of cannabis use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. For instance, the smell of cannabis, on its own, is not evidence of articulable symptoms of impairment.
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 an impairment.
The FAQs also clarify employers’ ability to restrict cannabis use and possession on their premises:
Employers may prohibit cannabis use during paid and unpaid break time and meal time, regardless of if the employee leaves the employer’s premises for such breaks.
Employers may prohibit use of cannabis during periods in which an employee is “on-call.”
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, etc.).
Employers may prohibit use of cannabis in company vehicles or on the employer’s property, even after regular business hours or work shifts.
Lastly, the FAQs discuss the permissibility of drug testing to detect the presence of cannabis:
Employers cannot test employees for cannabis unless permitted to do so pursuant to applicable law.
Employers cannot test an employee for cannabis merely because such a test is allowed or not prohibited under Federal Law. However, an employer can test an employee for cannabis if federal or state law requires drug testing or makes drug testing a mandatory requirement for a position.
Employers should review their drug policies and procedures for compliance with this new guidance. If you have any questions regarding complying with New York State laws on employee cannabis use, please contact Amanda M. Baker at abaker@fglawllc.com or any attorney at the Firm.
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