As we discussed in an earlier related blog post, effective March 31, 2021, the Marijuana Regulation and Taxation Act (“MRTA”) legalized the use of recreational marijuana for adults who are 21 and older and amended New York Labor Law 201(d), among other revisions, to prohibit employers from discriminating against an employee for such employee’s “legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment of other property.” Recently, the New York Department of Labor (“DOL”) issued guidance on MRTA, which delineates permitted employer actions and answers to frequently asked questions.

Employers cannot test for cannabis and cannot rely on drug workplace policies existing prior to the effectiveness of MRTA, except for limited circumstances, such as if drug testing is specifically required by law. However, employers can implement new policies prohibiting cannabis use during work hours or on the employer’s property in compliance with the law.

What constitutes “work hours”?

Under the DOL guidance, “work hours […] means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. Such periods of time are still considered ‘work hours’ if the employee leaves the worksite.” Additionally, employers can prohibit cannabis while an employee is on call or “expected to be engaged in work.”

What is employer’s property?

Employers can prohibit use and even possession of cannabis on the “employer’s property, including leased or rented space, company vehicles, and areas used by employees within such property (e.g. lockers, desks, etc.).” The DOL guidance further states that “employers are permitted to prohibit use in company vehicles or on the employer’s property, even after regular business hours or work shifts.”

Can an employer take action against an employee for using cannabis on the job?

Yes, employers may take employment action against an employee if the employee manifests specific articulable symptoms of impairment that (i) decrease or lessen the performance of their duties or tasks and (ii) interfere with an employer’s obligations to provide safe and healthy workplace, free from recognized hazards as required by state and federal occupational safety and health laws (such as the operation of heavy machinery in an unsafe and reckless manner). Articulable symptoms of impairment are objectively observable indications that employee’s performance of the duties of the position of their position are decreased or lessened, however, the DOL guidance cautions that “such articulable symptoms may also be an indication that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer. Employers should consult with appropriate professionals regarding applicable local, state, and federal laws that prohibit disability discrimination.” Additionally, the DOL guidance specifies that the smell of cannabis alone is not an articulable symptom of impairment.

For further information or guidance on revising your policies and procedures, please contact David Paseltiner.