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NEW YORK PUBLISHES GUIDANCE ON ADULT CANNABIS USE AND THE WORKPLACE – 4 KEY
FACTS FOR EMPLOYERS

Insights

10.28.21


New York employers have been anxiously awaiting additional information about how
the legalization of recreational marijuana will impact the workplace – and they
finally have some. The state’s Office of Cannabis Management (OCM) recently
published a fact sheet on cannabis and the workplace offering an overview of
employers’ rights and responsibilities in this area. As previously reported, New
York passed the Marijuana Regulation and Taxation Act (MRTA) in April,
legalizing the use of cannabis for adults aged 21 or over and protecting
employees from disciplinary action and discrimination for off-duty usage. OCM’s
fact sheet, released on October 8, is the first guidance employers have received
on the new law. Here are four key facts from the guidance employers need to
know.   

 1. Only Employees Are Protected from Employer Action
    
    MRTA protects employees from disciplinary action or discrimination for their
    off-duty marijuana usage. The guidance confirms that the MRTA does not apply
    to individuals who are not employees, such as independent contractors,
    volunteers, and students.
    
    Further, illegal cannabis use is not protected. An employer may discipline,
    report, or fire an employee under age 21 who uses cannabis on the job or
    otherwise violates provisions of the MRTA.

 2. Employers Can Prohibit Certain Activities
    
    The MRTA prohibits employers from discriminating against employees for their
    lawful cannabis use outside of work. Employers also cannot create a policy
    generally prohibiting cannabis use unless a specific exception enumerated in
    the Act applies. However, the fact sheet confirms that employers can
    prohibit:
    
    * Cannabis use during work hours, including during paid and unpaid breaks
      and meals taken on or off the job site or while an employee is on call.
      This prohibition can also extend to employees working remotely.
    * Possession of cannabis on employer property, including leased and rented
      spaces, company vehicles, and areas used by employees like desks or
      lockers.
 3. Employers Are Mostly on Their Own When It Comes to Determining “Impairment”
    
    The law states that employers may take an employment action (i.e.
    discipline, termination) against an employee who is impaired while working
    if they exhibit “articulable symptoms of impairment”. Unfortunately, OCM’s
    new fact sheet does not provide employers with much guidance as to what that
    term specifically means except to say that there is no “dispositive and
    complete” list of symptoms of impairment and that the smell of cannabis, on
    its own, does not qualify.
    
    The guidance provides an example of potential impairment: the “operation of
    heavy machinery in an unsafe and reckless manner,” which has limited utility
    for most employers. Consequently, you must still rely on individualized
    assessments of the observable conduct that may indicate impairment in their
    workplace. As the Act states, “specific articulable symptoms” must be
    manifested by a (1) decrease or lessoning of an employee's performance, or
    (2) interference with the employer’s obligation to provide a safe and
    healthy work place. 
    
    Since, however, articulable symptoms could be manifestations of an
    employee’s disability, the guidance advises employers to consult with
    appropriate professionals regarding applicable local, state, and federal
    laws before making employment-related decisions to prevent disability
    discrimination.

 4. Drug Testing May Be of Limited Utility
    
    The guidance confirms that a drug test for cannabis usage cannot serve as a
    basis for an employer’s conclusion that an employee is impaired by cannabis,
    given the current limitations of cannabis testing.
    
    Per the guidance, New York employers are also prohibited from testing for
    cannabis unless specifically permitted by New York Labor Law Section 201-D
    (4-a) or other applicable laws. While this may seem like an outright ban on
    cannabis drug testing for most employers (since the exemptions are not
    applicable to most employers), the fact sheet is not binding law and the Act
    itself does not provide for such prohibition. However, you must be cognizant
    of the state’s position on drug testing before acting. Moreover, given that
    a positive test does not provide evidence of impairment, there is little
    utility in testing employees for cannabis. 

Next Steps for New York Employers

You should remove any language in employee handbooks or company policies that
outright prohibits the use of cannabis. If you have not already, you should also
develop a policy on cannabis impairment at work, identifying the steps (if any)
that will be taken if an employee is believed to be under the influence while
working. Supervisors should be trained on symptoms that may constitute
articulable symptoms of impairment in your workplace and all applicable
policies. Employers also need to carefully review their drug testing policies
and procedures to ensure compliance with the law. 

OCM will continue to release guidance and regulations as the Act is further
implemented. We will monitor developments related to the MRTA, so make sure you
are subscribed to Fisher Phillips’ Insight System to get the most up-to-date
information directly to your inbox. If you have questions about the MRTA and
whether your policies comply with workplace and other applicable laws, contact
your Fisher Phillips attorney, the authors of this Insight, or any attorney in
our New York City office.


RELATED PEOPLE

 1. Melissa (Osipoff) CamirePartner
    
    212.899.9965
    
    Email
 2. Amanda M. BlairAssociate
    
    212.899.9989
    
    Email


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