Can an employer take action against an employee for using cannabis on the job, prohibit cannabis possession in the workplace, or drug test for cannabis? These are just some of the many questions that employers and employees have been wondering since the legalization of adult-use marijuana in New York State on March 31 via the Marijuana Regulation and Taxation Act (MRTA).

CMM previously reported on the legalization of marijuana in April, taking a look at the new legislation and the workplace concerns of many employers and employees. Now, the New York State Department of Labor (NYSDOL) has issued an FAQ addressing some of these concerns with concrete answers for common situations and questions regarding adult-use cannabis and the workplace. Here are some highlights.

Discrimination

The FAQ reiterates that the MRTA prohibits employers from discriminating against employees based on the use of cannabis outside of the workplace and outside of work hours. However, it’s important to note that employees are only protected if they are over the age of 21 since the sale, use, or transportation of cannabis by individuals under the age of 21 is still illegal in New York State. The law does not explicitly require employers to report or fire employees under the age of 21 using cannabis on the job or discipline them in any way, but an employer can take action if they choose to.

An employer is also permitted to take action against an employee if an employer would be in violation of federal law, lose a federal contract or federal funding, or be unable to provide a safe and healthy workplace as required by state and federal workplace safety laws.

Articulable Symptoms of Impairment

Employers are also permitted to take employment action if an employee has “articulable symptoms” of cannabis impairment that impacts their performance on the job. The FAQ does not provide a list of what “articulable symptoms” of cannabis impairment are, instead describing the symptoms as “observable indications” that an employee’s performance has decreased or lessened. However, the FAQ cautions employers that articulable symptoms should not be confused with a disability protected by federal and state law.

Drug Testing of Employees

The FAQ states that employers are not permitted to test for cannabis unless federal or state law requires drug testing as a mandatory requirement of the position (for example: mandatory drug testing for drivers of commercial motor vehicles).

Also, when it comes to drug testing as a basis for an “articulable symptom” of impairment, a test for cannabis usage “cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment.” Additionally, employers cannot fire employees for the smell of cannabis alone.

Use at Work or During Work Hours

The FAQ makes it clear that employers are allowed to prohibit cannabis during work hours including paid and unpaid breaks such as lunchtime or when an employee leaves the worksite and then returns. Employers can also prohibit employees from bringing cannabis onto the property including at an employee’s desk or in a locker. If an employee is caught using cannabis on the job, it’s the employer’s decision whether to permit the employee to keep working or to take employment action. For more guidance as the NYDOL continues to develop its Office of Cannabis Management (OCM) and the rules and regulations surrounding the adult-use industry, please contact our Cannabis Law practice area chair, CMM Partner Arthur Yermash.