As the parade of states decriminalizing and legalizing marijuana use has proceeded over the past several years, several of them also have taken steps to protect users from what is seen as unfair discrimination, making it increasingly difficult for employers to maintain a drug-free workplace. The latest such action was taken by the New York State Department of Labor (NYDOL).
It recently offered guidance for employers dealing with the state’s Marijuana Regulation and Taxation Act (MRTA), which was signed into law last March 31. The new statute expressly includes the use of “cannabis in accordance with state law” as a legally protected lawful activity outside of work employers can’t use to discriminate against workers.
The law’s language does not expressly prohibit all kinds of drug testing for cannabis, points out attorney Marissa A. Mastroianni of the law firm of Cole Schotz. However, a guidance cast as Frequently-Asked-Questions was recently issued by NYDOL that confirms New York employers may not test applicants or employees for marijuana unless one of a few limited exceptions apply.
The identified exceptions are:
- An employer is required to conduct testing by state or federal law. It is clearly stated that an employer is not permitted to conduct cannabis drug testing simply because it is allowed or not prohibited under federal law. It can only be undertaken when there is an affirmative obligation under state or federal law for the employer to test the applicant or employee, such as in the case of a Department of Transportation regulated position like an interstate truck driver or airline pilot.
- Tests also can be conducted if not to do so would place the employer in violation of federal law or it would lose a federal contract or federal funding.
- The employee, while working, manifests “specific articulable symptoms of cannabis impairment” that decrease or lessen the employee’s performance of the employee’s tasks or duties or interfere with the employer’s obligation to provide a safe and healthy workplace. Only if that criteria can be met will the employer be permitted to take an adverse employment action against an employee for cannabis use.
Importantly, the guidance states that a cannabis drug test at work cannot serve as a basis for an employer’s conclusion that an employee was impaired due to marijuana use, which now effectively bans employers from conducting cannabis drug testing on most employees, Mastroianni stresses.
When Can You Test?
Unfortunately, the law does not define “impairment” and the guidance acknowledges that there is “no dispositive and complete list of symptoms of impairment.” However, the NYDOL guidance does state that “specific articulable symptoms of cannabis impairment” are “objectively observable” indications that the employee’s job performance is decreased or lessened.
One example given by the guidance explains that operating heavy machinery in an unsafe or reckless manner could be an articulable symptom of impairment. Employers are cautioned that objectively observable indications of impairment could “also be an indication of a disability.”
Mastroianni recommends that employers be careful before taking an adverse employment action or conducting drug testing because of presumed cannabis impairment. Specifically, NYDOL emphasizes that the smell of marijuana, on its own, does not qualify as a “specific articulable symptom of cannabis impairment.”
Indeed, the guidance is clear that only those symptoms objectively indicating that “the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited” as a “specific articulable symptom of cannabis impairment,” which then allows the employer to conduct cannabis drug testing or take an adverse employment action against the employee.
In short, some stereotypical indications of marijuana use alone, such as odor or red eyes, are not “specific articulable symptoms of cannabis impairment,” Mastroianni notes. In other words, “I know it when I see it” is not considered a good enough explanation.
“Given the ambiguity of what constitutes as a ‘specific articulable symptom of cannabis impairment,’ New York employers are strongly encouraged to speak with legal counsel prior to conducting any cannabis drug testing based on presumed cannabis impairment,” Mastroianni advises.
It might not be too comforting to know, but employers are allowed to ban cannabis use during working hours. The law defines this period of work as “all time, including paid and unpaid break and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time that the employee is actually engaged in work.”
Keep in mind that working hours also include periods during which an employee is considered to be on-call.
Employees can be prohibited from bringing cannabis onto company property, including “leased and rented space, company vehicles, and areas used by employees within such property (e.g., lockers, desks, etc.).”
For remote employees, the employee’s private residence being used for remote work is not a considered a “worksite.” Employers can’t prohibit remote employees from using or possessing cannabis in their homes. They only can take action against a remote employee if they exhibit “specific articulable symptoms of cannabis impairment” during work hours.
“Overall, New York employers, which includes employers that are not based in New York but have employees in New York, should review their substance-free workplace policies and drug testing policies (if applicable) to ensure compliance,” Mastroianni explains. She says New York employers should train employees who enforce substance-free workplace policies in what constitutes symptoms of cannabis impairment.
If you do not operate a business in New York but do so in locations where marijuana reform has been or is in the process of being adopted, keep an eye out for similar employee protections in those jurisdictions as well. Currently, about 36 states and the District of Columbia permit the use of recreational or medicinal marijuana.
At present, Colorado and California law don’t protect employees who use cannabis outside of work hours, although legislation in California has been introduced to limit the use of employment-related drug screening. At the same time, New Jersey and Nevada allow testing and employers to take adverse action against employees. A new Philadelphia law bans most employers from testing new hires for marijuana starting Jan. 1, 2022.