New York Department of Labor Issues Recreational Cannabis Guidance

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Spring 2021 brought about the legalization of recreational cannabis for individuals 21 and older in the state of New York. The Marihuana Regulation and Taxation Act (the Act) was immediately effective and impacted workplace drug and alcohol testing practices. New York residents ages 21 and older can use, possess, and cultivate cannabis but are not permitted to do so in the workplace. Additionally, employers are broadly prohibited from testing for cannabis unless certain requirements are met and drug tests cannot be the basis for the determination that an individual is impaired.

What Does the Act Say About Recreational Cannabis in the Workplace?

The Act does not limit an employer’s ability to enact and/or enforce policies pertaining to cannabis in the workplace. Generally, employers cannot refuse to hire, employ, license, discharge, or otherwise discriminate against an individual because of their use of legal products and/or their legal recreational activities, including cannabis, when done in accordance with state laws. This applies if the individual uses cannabis prior to or after work hours and off the employer’s premises without the use of the employer’s equipment or other property.

Under the Act, employers can take action pertaining to cannabis use under the following circumstances:

  • If the employer’s actions were required by state and/or federal law, statute, regulation, ordinance, or mandate.
  • If an employee is impaired by cannabis use. To act based on impairment, the employee must manifest specific, articulable symptoms while working that decrease or lessen their performance of duties or tasks related to their position. Alternatively, an employer can act when said articulable symptoms interfere with the employer’s obligation to provide a safe and healthy workplace that is free from recognized hazards as required by state and federal law.
  • If not taking action would require the employer to commit an act that would cause them to be in violation of federal law or would result in loss of a federal contract or funding.

What Does the New York Department of Labor’s Guidance Say

In October 2021, the New York Department of Labor (DOL) issued a document, Adult Use Cannabis and the Workplace: New York Labor Law 201-D (the guidance), that was intended to provide clarification pertaining to recreational cannabis and the workplace. The guidance pertains only to recreational cannabis use and does not apply to medical cannabis situations.

Pertaining to impairment, the guidance states the following:

  • Employers can take employment action against an employee if the employee is impaired by cannabis at work
  • Impairment means that the individual in question manifests specific articulable symptoms of impairment that decrease or lessen job performance or interfere with the employer’s obligation to provide a safe and healthy workplace.
  • The Act includes no list of symptoms of impairment and the DOL does not offer one either. Rather, employers should look for symptoms that are objectively observable indications that the employee’s performance is decreased.
  • “Observable signs of use that do not indicate impairment on their own cannot be cited as…articulable symptoms of impairment.”
  • An employer cannot use a drug test as the basis for their determination that an employee was/is impaired by cannabis.

Employers should remember that symptoms indicating impairment could also indicate that an employee has a protected disability.

Pertaining to cannabis use at work, the guidance states:

  • Employers cannot prohibit employees on leave from using cannabis unless the Act specifically states that they can.
  • Employers can prohibit all cannabis use at work or during work hours, including if the employee leaves the worksite but is still on the clock or if the employee is on call.
  • Cannabis possession can be prohibited in the workplace.
  • Employers cannot prohibit remote employees from using cannabis in their private residence; however, employers may take action if a remote employee is exhibiting articulable symptoms of impairment during work hours and may have a general policy prohibiting use during work hours.

Employers cannot require employees or applicants to promise or agree to abstain from cannabis use as a condition of employment.

Pertaining to policies and drug testing, the guidance states:

  • If an employer has an existing drug-free workplace policy that prohibits cannabis use, the policy is not permitted (unless an exception applies under the Act), and the employer must update or amend their policy immediately.
  • Employers cannot test for cannabis unless they are permitted to do so pursuant to the Act (section 4-a) or by other applicable laws.
  • Employers cannot test for cannabis merely because it is allowed and not prohibited under federal law.
  • Employers can drug test their employees for cannabis if federal or state law requires drug testing or makes it a mandatory requirement of the position (e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with DOT regulations, etc.).

Additionally, the guidance clarifies that the Act applies only to employees employed within the state of New York. Both public and private employers in the state of New York are covered under the Act.

Next Steps

Employers should work with a policy expert to review and update their drug-free workplace policies immediately. To read the full text of the guidance, visit the following page: https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf. DISA Global Solutions’ professionals cam assist you with building and maintaining a policy that’s custom to your company’s needs.

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