New York Dept. of Labor Guides Cannabis and Workplace Testing

With an rising variety of states legalizing using leisure marijuana, employment legal guidelines are being enacted to handle marijuana possession and use.¹ One such state is New York. The New York Division of Labor (DOL) has issued new guidance on adult cannabis use and the workplace. The steerage discusses adjustments to New York Labor Regulation (NYLL), Part 201-D, addressing subjects comparable to when employers can and can’t take a look at for marijuana, take antagonistic actions primarily based on hashish use, and make employment selections primarily based on constructive drug checks. The DOL’s place on the Marijuana Regulation and Taxation Act (MRTA) could shock some lined employers — which embody all private and non-private employers in New York state, no matter measurement, business, or occupation. 

Now that leisure hashish is authorized in New York, the MRTA amended Part 201-D of the Labor Regulation to make clear that hashish is now a authorized consumable product when utilized in accordance with New York state legislation. As such, employers can’t discriminate in opposition to workers over the age of 21 primarily based on their use of marijuana supplied it takes place outdoors the office, outdoors working hours, and when not utilizing the employer’s gear or property. 

What does this imply with regard to drug testing, disciplinary actions, and different employment issues? Let’s begin with what employers can nonetheless do. First, employers should prohibit (1) using hashish on the office, together with throughout meal and relaxation breaks, (2) using hashish in periods an worker could also be “on-call,” and (3) the possession of hashish on firm property, together with in leased and rented areas, in firm autos, or in different areas utilized by workers. 

Moreover, employers should take motion in opposition to an worker for utilizing hashish outdoors of labor if the worker’s potential to carry out the duties or duties of the job is impaired because of this, and/or using marijuana interferes with the employer’s potential to supply a protected working atmosphere for others as required by state and federal occupational security and well being legal guidelines. There isn’t a dispositive listing of signs that will represent “impairment.” However, if there are objectively observable indications that an worker’s efficiency is decreased or lessened, these could represent articulable signs of impairment such that an employer could self-discipline the worker for utilizing hashish. 

For example, the DOL states that working heavy equipment in an unsafe and reckless method could also be an articulable symptom of impairment and would additionally intervene with the employer’s potential to supply a protected working atmosphere. The DOL notes, nonetheless, that sure signs may additionally be a sign that an worker has a protected incapacity, even when such incapacity is unknown to the employer. If an employer learns of a incapacity on this occasion, the employer ought to proceed to interact in an interactive course of to find out if an lodging is required and could be fairly supplied.  

So, what new restrictions bind employers now that leisure hashish use is authorized in New York? In the beginning, an employer can’t take a look at for hashish until they’re permitted to take action primarily based on the provisions of Labor Regulation § 201-D(4-a) or different relevant legal guidelines. This essentially implies that employers shouldn’t take a look at for leisure marijuana use until: (1) the employer’s actions had been required by state or federal statute, regulation, ordinance, or different state or federal governmental mandate; (2) the worker is impaired whereas working or the articulable signs of impairment intervene with the employer’s obligation to supply a protected and wholesome office as required by state and federal security and well being legal guidelines; or (3) the employer’s actions would require such employer to commit any act that might trigger the employer to be in violation of federal legislation or would end result within the lack of a federal contract or federal funding. 

Nonetheless, this doesn’t imply an employer can take a look at for hashish just because federal legislation permits testing, or doesn’t expressly prohibit it. Fairly, an employer can drug take a look at an worker if federal or state legislation requires drug testing or makes it a compulsory situation of the worker’s place (e.g., obligatory drug testing for drivers of economic motor autos (498 CFR Half 382); or obligatory drug testing for for-hire automobile motor carriers (NY Car and Site visitors Regulation § 507-a)). 

Employers additionally could not use drug testing (for marijuana) as a foundation for an articulable symptom of impairment to permit the employer to take motion in opposition to the worker. Which means a take a look at for hashish utilization can’t function the premise for an employer’s conclusion that an worker was impaired by way of hashish, nor could an employer refuse to rent, make use of or license, or discharge an worker primarily based solely on a constructive (for marijuana) drug take a look at. Equally, the scent of hashish, by itself, is just not proof of an articulable symptom of impairment in opposition to which an employer could take motion. Solely signs that present objectively observable indications that the worker’s efficiency is decreased or lessened could also be cited in assist of “impairment.” 

Employers additionally can’t prohibit using hashish outdoors the office until permitted to take action underneath Labor Regulation § 201-D(4-a).  Moreover, employers can’t require workers to vow to not use hashish as a situation of employment such that workers waive their rights underneath NYLL § 201-D. 

Lastly, to the extent that an worker is discovered to have used hashish at work or to be impaired by use of hashish whereas at work, this doesn’t imply an employer should terminate that particular person’s employment. Though an employer could take motion in opposition to an worker in these circumstances, it’s not required to take action. Equally, employers usually are not required to rehire any former worker who was terminated as a consequence of hashish use previous to its legalization. 

Exterior sure articulable circumstances underneath the legislation, it seems the DOL has taken the same stance on marijuana because it has with alcohol, and employers could wish to think about treating use (and misuse) of these substances equally.

FOOTNOTES

¹ This GT Alert doesn’t handle conditions and eventualities that will come up surrounding medical use of hashish.