Recreational Cannabis on the Job: DOL Guidance

The New York State Department of Labor recently issued guidance regarding cannabis use in the workplace and the modifications to New York Labor Law Section 201-D made by the Marihuana Regulation and Taxation Act (“MRTA”), enacted this spring.

            The highlights:

- Amendment of Labor Law Section 201-D(2)(b) and (c): These provisions, which prevent employers from discriminating on the basis of an individual’s legal use of consumable products, have been amended to explicitly include cannabis and, as such, its use by employees outside of the workplace, outside of work hours, and without use of the employer’s equipment or property, cannot form the basis for discriminating against a person in hiring, employment, licensing, compensation, promotion, or the terms, conditions or privileges of employment.

Section 201-D(1)(c) defines “Work Hours” as meaning “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,” and the DOL guidance clarifies that this includes work time off-site (e.g., a lunch break taken off of the employer’s premises).

- New Labor Law Section 4-a: This section states that, notwithstanding the amendment of Section 201-D(2), an employer is permitted to take action against an employee in relation to the use of cannabis if:
 

• The employers’ actions were required by state or federal law or other state or federal governmental mandate.
• An employee “is impaired by the use of cannabis, meaning the employee manifests specifically articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position” (emphasis added).

     While the law gives no criteria for what “specifically articulable symptoms” may mean, the DOL guidance cautions that they may be an indication that an employee has a disability or condition protected against discrimination by state or federal law, even if the disability is unknown to the employer.

     Per the DOL guidance, symptoms that do not indicate impairment cannot be cited as an articulable symptom. The mere aroma of marijuana without more would not be an articulable symptom. Also, drug testing is generally prohibited and does not provide an articulable symptom, as current tests do not demonstrate impairment, though testing is permitted where mandatory under federal or state law.

• An employee’s use of cannabis interferes with “an employer’s obligation to provide a safe and healthy work place, free from recognized hazards,” as required by state and federal law; or
• The employer’s actions would require committing 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.”

Note that the above actions are permissible, not mandatory.

- The foregoing provisions only apply to employees employed within the State of New York, not to employees working remotely in another state. With respect to employees working remotely in New York, the DOL does not consider an employee’s residence to be a “work place” within the meaning of Section 201-D; employers can nonetheless require employees to refrain from cannabis use during work hours and can take action against remote employees exhibiting articulable symptoms of impairment.
 

- Employers can prohibit cannabis possession at work, including leased and rented space, and company vehicles, even outside of work hours.

- Both public and private employees – other than federal employees – are covered by the MRTA and non-discrimination provisions of Section 201-D, but not non-employees (e.g., independent contractors, volunteers, students who are not employees, and family members working in a family business). Persons under the age of 21, for whom recreational use of marijuana continues to be illegal, are also not covered. Immigration and citizenship status are irrelevant.

Stay tuned for other updates!

Catania, Mahon & Rider, PLLC's Cannabis Law practice group is involved in all aspects of the legal cannabis business. The Cannabis Law group follows the evolving regulatory framework, and counsels clients on all aspects of the cannabis regulatory regime, including the license application process, from advance planning to submission of the application to subsequent compliance. The Cannabis Law group also works closely with the Business Law team on mergers and acquisitions and other contractual matters involving the sector. 

The foregoing is not intended as legal advice, and an attorney should be consulted prior to acting on the information provided above.

Jonathan S. Berck is a member of Catania, Mahon & Rider, PLLC’s Cannabis Law practice group and writes frequently on cannabis-related topics and corporate law generally.