Clearing the Air — NY Department of Labor Issues Guidance Clarifying the Use of Cannabis in the Employment Context

As discussed in Kramer Levin’s alert earlier this year, New York’s Marijuana Regulation and Taxation Act (the Act) legalized recreational cannabis for individuals age 21 and older in New York State effective March 31, 2021. The Act also modified New York Labor Law Section 201-d (NYLL § 201-d) (which generally prohibits employers from discriminating against employees for engaging in legal recreational or political activities outside of work) to protect an employee’s legal use of consumable products, including cannabis, so long as such use occurs “outside work hours, off of the employer’s premises, and without use of the employer’s equipment or other property.”

In October 2021, the New York State Department of Labor published guidance titled “Adult Use Cannabis and the Workplace” (guidance) to address common questions that employers and employees may have concerning how recreational cannabis may interact with employment. The guidance interprets the meaning of “impairment,” the use of cannabis at work or during working hours, workplace policies, to whom the new law applies, and drug testing of employees.

Articulable Symptoms of Impairment

NYLL § 201-d(4-a) permits an employer to discipline or discriminate against an employee who “is impaired by the use of cannabis” — meaning that the employee manifests “articulable symptoms” of impairment that decrease the employee’s performance or interfere with an employer’s ability to provide a safe, healthy workplace.

The guidance vaguely interprets the meaning of “articulable symptoms” of impairment upon which an employer may engage in an adverse action against an employee. The guidance states that “[t]here is no dispositive and complete list of symptoms of impairment. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of the position of their position are decreased or lessened.” Notably, the guidance provides that employers may not base their determination that an employee was impaired at work due to cannabis use solely on the results of a drug test or an odor of cannabis emanating from the employee.

Use During Work Hours or at Work

In addition, the guidance clarifies the circumstances in which employees may be subject to adverse action for cannabis use at work or during “work hours.” The guidance states that employers may prohibit cannabis use during work hours, which for these purposes 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.” According to the guidance, such periods of time are still considered work hours if the employee leaves the worksite. In addition, 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.

Applicability and Coverage of Law

The guidance explains that the Act and the cannabis-related provisions of NYLL § 201-d only protect employees who are 21 years of age or older and located in New York State. Stated differently, the employment protections do not extend to individuals who are not employees (e.g., students who are not employees, independent contractors, individuals working out of familial obligation and volunteers) or employees under the age of 21, and only apply to employees employed within the state of New York.

Drug Testing

Finally, an employer cannot test an employee for cannabis unless (i) the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate; (ii) the employee is impaired by the use of cannabis, as defined in the statute; or (iii) the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding. See NYLL § 201-d(4-a). Notably, the guidance makes clear that an employer cannot test an employee for cannabis “merely because it is allowed or not prohibited under federal law”; however, an employer can conduct a drug test for cannabis if federal or state law requires drug testing or makes it a mandatory requirement of the employee’s position (e.g., drivers of commercial motor vehicles).

Next Steps for Employers

Employers should review their workplace policies concerning employee cannabis use and drug testing and revise them in accordance with the Marijuana Regulation and Taxation Act and the guidance.

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