On October 8, 2021, the New York State Department of Labor (“NYDOL”) issued new guidelines, largely in the form of Frequently Asked Questions (the “Guidelines”), reflecting the protection of employment for cannabis users under marijuana regulation and taxation Act (“MRTA”) that went into effect March 31, 2021. As noted in a recent Cannabis Business Times article we cited, the FAQs set a precedent in prohibiting employers from testing applicants and workers for cannabis use altogether, except in very limited cases.

As we reported, the MRTA amends Section 201-d of the New York Labor Code (“NYLL”), which has long prohibited employers from discriminating against an employee for their legitimate off-duty activities. In particular, the MRTA amends this section of the NYLL to specifically include the use of “cannabis in accordance with the laws of the state” as a lawful outside work activity. As a result, the MRTA introduced anti-discrimination protection for cannabis users and confirmed that employers are now prohibited from discriminating against applicants and employees solely on the basis of the lawful use or possession of cannabis products by applicants and employees off-duty and off-work.

Applicants and staff for drug testing for cannabis

In particular, the legal language of the MRTA does not prohibit drug testing for cannabis. However, in the guidelines, NYDOL confirms that New York employers must not test applicants or employees for cannabis unless one of the following limited exceptions applies:

  • An employer is necessary to conduct such tests under state or federal law. The FAQs clearly state that an employer is not permitted to conduct cannabis drug testing just because federal law allows or does not prohibit it. Such an examination can only be carried out if the employer is obliged under state or federal law to examine the applicant or employee (e.g. in the case of a position regulated by the Ministry of Transport);
  • Otherwise the employer would violate federal laws or lose a federal contract or federal grant; or
  • The worker exhibits “specific articulable symptoms of cannabis impairment” (as defined below) during work that interferes or interferes with the worker’s performance of the worker’s duties or obligations or the employer’s obligation to provide a safe and healthy workplace. Importantly, the FAQs state that a cannabis drug test cannot be used as a basis for an employer to conclude that an employee was impaired as a result of cannabis use.

Identification of “specific articulable symptoms of cannabis impairment”

As stated above, employers may conduct cannabis drug testing if the employee exhibits “specific articulable symptoms of cannabis impairment” while on the job that either: (1) diminishes or diminishes the employee’s job performance, or (2) interferes with the employer’s obligation to provide a safe and healthy workplace. In addition, an employer is permitted to take an adverse labor law measure against an employee for cannabis use, provided the above criteria are also met.

The MRTA does not define “impairment” and the guidelines recognize that there is “no dispositive and complete list of symptoms of impairment”. The guidance states that “specific articulable symptoms of cannabis impairment” are “objectively observable” signs that the worker’s job performance is diminishing or diminishing. As an example, the guidelines explain that unsafe or reckless operation of heavy machinery can be an understandable symptom of impairment. However, the guideline warns employers that objectively observable indications of impairment “could also be an indication of disability”.[,]“Which means employers should be cautious before engaging in adverse employment action or drug testing due to suspected cannabis use.

Significantly, it is emphasized in the guidelines that the smell of cannabis alone does not qualify as a “specific articulable symptom of cannabis impairment”. Indeed, it is clear in the guidelines that only symptoms which objectively suggest that “the employee’s performance of essential duties or responsibilities is diminished or diminished” may be cited as a “specific understandable symptom of cannabis impairment” Employers are then allowed to conduct cannabis drug testing or take any adverse employment measure against the employee. In short, some stereotypical references to cannabis use alone, such as smell or red eyes, are not “specific articulable symptoms of cannabis impairment”.

Given the ambiguity of what constitutes a “specific articulable symptom of cannabis impairment,” New York employers are strongly encouraged to speak with a legal counsel before attempting cannabis drug testing for suspected cannabis impairment.

Cannabis use or possession during work hours or on company premises

The guidance reiterates that employers can prohibit cannabis use during working hours, which for the purposes of the MRTA means “at any time, including paid and unpaid breaks and meal times, that the employee is, may or is expected to he is doing a job and all the time that the employee is actually busy with the work. ”The guideline points out that working hours also include times when an employee is on call.

The guideline also states that employers are allowed to prohibit employees from bringing cannabis onto company premises, including “rented and rented space, company vehicles, and areas used by employees within such property (e.g. lockers, desks etc.). ”For remote workers, the guidelines state that the private residence of the employee used for remote work is not a“ workplace ”for the purposes of Section 201-d of the NYLL. Therefore, an employer cannot prohibit a remote worker from using or possessing cannabis at home, but instead can only take action against a remote worker if the worker shows “specific articulated symptoms of cannabis impairment” during work hours.

Overall, New York employers, which include employers who are not based in New York but who have employees in New York, should review their Substance Free Workplace Policies and Drug Testing Policies (if applicable) to ensure that guidelines are followed . New York employers should also urgently consider training employees tasked with enforcing substance-free workplace guidelines to assess what “specific articulable symptoms of cannabis impairment” are.