NYS Department of Labor Issues FAQs on Employment Issues Related to Recreational Cannabis Use

By Joseph S. Brown, Esq.

As we previously reported, in March 2021, former Governor Cuomo signed the “Marihuana Regulation and Taxation Act” (“MRTA”) which legalized the recreational use of marijuana for individuals over the age of 21. The MRTA significantly impacts the ability of New York employers to maintain a drug-free workplace.  More specifically, the MRTA amends New York Law Labor Law §  201-D, which protects employees’ right to engage in certain recreational activities outside of work.  In other words, the recreational cannabis user is now a protected classification of worker.  Earlier this month, New York’s Department of Labor (NYSDOL) tackled some of key employment law issues in a recent FAQ document.

The FAQ document provides a concise overview of several employment law related topics.  The key takeaways are summarized below:

Drug Testing

  • An employer cannot test for cannabis unless the employer is permitted to do so pursuant to the provisions of Labor Law § 201-D(4-a) or other applicable laws
  • An employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position

Use of Cannabis in the Workplace

  • Employers can prohibit the use of cannabis during “work hours” including paid and unpaid breaks and meal periods—such periods of time are still considered “work hours” if the employee leaves the worksite
  • Employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work”
  • 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
  • For remote employees, employers cannot prevent an employee from using cannabis at a private residence but the employer can take action if an employee is exhibiting articulable symptoms of impairment during work hours and may institute a general policy prohibiting use during working hours
  • Employers cannot prohibit the use of cannabis while employees are on leave unless the employer is permitted to do so pursuant to the provisions of New York Labor Law § 201-D(4-a)

Disciplinary Action

  • Illegal cannabis use is not protected
  • An employer can take action against an employee for using cannabis on the job (including where the employer has not adopted a policy prohibiting use) where the employee manifests “specific articulable symptoms of impairment”
  • The DOL does not define the “symptoms of impairment” but notes that they must:
    • Decrease or lessen the performance of their duties or tasks
    • 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
  • Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited
  • The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment

Employers that may be subject to state and federal laws that require drug testing will need to carefully analyze the interplay between those obligations and Labor Law § 201-D.  As noted by the FAQs, employers are encouraged to update or amend their policies to reflect changes to New York State law. 

Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.

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