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Department of Labor issues new guidelines addressing cannabis in the workplace

November 19, 2021

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Under the New York Labor Law 201-D, employers are now unable to discriminate against their employees or future hires by testing for cannabis. They also must have objectively observable evidence that an employee’s job performance is negatively affected by their use of marijuana in order to take disciplinary action against them.

The state Department of Labor recently issued new guidance to address some of the most common situations or questions in the workplace related to adult-use cannabis and the Marijuana Regulation and Taxation Act.

The new guidelines state that “An employer is not prohibited from taking employment action against an employee if the employee is impaired
by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that decrease or lessen the performance of their duties or tasks, or interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws.”

However, the guidance clearly states that “employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.”

“Moving forward, if any employees are terminated because of their use of marijuana, they can make an argument of being in violation of law 201-D if they feel like they are being discriminated against because of the legal use of a consumable product, which marijuana now falls under,” said Melanie Franco, a labor and employment attorney for Tully Rinckey, an Albany-based law firm with offices in Binghamton, Manhattan, Syracuse, Rochester, Saratoga Springs and Buffalo.

Marijuana is still not legalized federally, therefore federal employees are still subject to drug testing and are not protected under the new state labor law. However, according to the Department of Labor’s FAQ page titled Adult Use Cannabis And The Workplace – New York Labor Law 201-D, “an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position.” For example, NY Vehicle and Traffic Law Section 507-a mandates random drug and alcohol testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.

The labor law also only deals with recreational use of marijuana, not medical use.

On March 31, former governor Andrew Cuomo signed into law the New York State Marijuana Regulation and Taxation Act which legalized the recreational use of marijuana for adults ages 21 and up.

The marijuana legalization laws amended New York Labor Law Section 201- D by adding a new subsection 4-a, which serves to clarify that marijuana used in accordance with New York state law is a legal and consumable product and workers, unless federally employed, cannot lose their jobs over recreational consumption outside of work hours.

According to the FAQ page, “employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.”

The FAQ page also notes that the only way an employee can be disciplined for consuming marijuana is if it negatively affects their job performance, or if it interferes with an employer’s duty to provide a safe work environment for everyone.

Although there is no concrete list of potential symptoms of impairment for marijuana usage, if an employee is displaying signs of being under the influence marijuana where it can be classified as objectively observable and linked to their lessened job performance, they can be penalized.

An employee showing only physical signs that they consume marijuana does not qualify as an “articulable symptom” of impairment under this law and cannot be used as a basis for taking disciplinary action unless their work ethic or performance of duties are also declining.

“They [the employers] can’t just make an assumption based on smell or red eyes or anything like that; there has to be a specific work deficit,” Franco said.

Employers are allowed to prohibit their employees from consuming marijuana during work hours which include paid and unpaid lunch breaks and while they are on work premises. They can also prohibit the possession of marijuana at work including in all company vehicles or other areas used by employees such as in locker rooms.

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