Precision Required as New York Employers Seek to Restrict Cannabis in the Workplace
Posted by [email protected] on Dec. 6, 2021 / Subscribe 0
Precision Required as New York Employers Seek to Restrict Cannabis in the Workplace
By Tracey I. Levy, Esq.
As a result of the legalization of the recreational use of marijuana earlier this year, New York employers need to revisit their policies and practices to ensure they are not retaliating or discriminating against employees’ legal use of cannabis. Recent guidance issued by the state Department of Labor, while vague in some respects, offers some parameters for employers.
In general, an employee cannot be disciplined solely for the employee’s legal use of cannabis. This means that employees are protected in their legal use of cannabis:
- before or after working hours; or
- during an employee’s legal recreational activities,
provided that the usage was off the employer’s premises and did not involve the employer’s equipment or property. Employers can, however, prohibit smoking or vaping cannabis on and around the employer’s premises, just as employers prohibit smoking or vaping of tobacco products on their premises. There also is no legal protection for consumption or use of cannabis in the workplace itself, nor any allowances for an employee to report to work when the employee’s ability to work or support a safe workplace has been impaired by cannabis.
Marijuana remains an unlawful drug under federal law, though, and the legalization of its recreational use in New York cannot override federal laws regulating marijuana usage. Therefore, employers that are subject to broader federal or state law requirements with regard to regulating drug usage, including cannabis, are permitted to continue applying those broader requirements in their workplaces. This exception is significant with regard to drug testing. New York employers can no longer include testing for tetrahydrocannabinols (“THC”) or marijuana in their drug screening panel, unless federal or state law requires drug testing or makes it a mandatory requirement of the position (such as for drivers of commercial motor vehicles).
Employers may additionally take disciplinary action against an employee who manifests “specific articulable symptoms” of impairment due to cannabis use while working that:
- inhibit, decrease, or lessen the employee’s ability to perform the employee’s duties; or
- interfere with the employer’s obligation to provide a safe and healthy workplace.
The term “specific articulable symptoms” is not defined in the statute, and the Department of Labor provides a vague explanation that they consist of “objectively observable indications that the employee’s performance of the duties of … their position are decreased or lessened,” with little by way of examples. The mere smell of cannabis on an employee would not be considered a specific articulable symptom, nor would a positive drug test, as both simply indicate usage at some point in the recent past, but not current impairment. In contrast, the operation of heavy machinery in a reckless or unsafe manner could be considered a specific articulable symptom. Employers are cautioned to be mindful that articulable symptoms of impairment that might be presumed to indicate cannabis usage could also be attributable to other medical conditions that would be legally protected as a disability.
Finally, the medicinal use of cannabis under New York’s Medical Marijuana Program, which has been legal in New York since 2014, is now incorporated within the broader law legalizing recreational use of marijuana. Patients that have been certified to use medical cannabis are considered to have a legally-protected disability. They cannot be subjected to disciplinary action solely for their certified medical use of cannabis, and may be entitled to a reasonable accommodation based on their medicinal usage, provided that doing so would not present an undue hardship for the employer or present a direct threat to the safety of the employee or others in the workplace.
For employers with drug free workplace policies or drug testing programs that are not specifically mandated by federal law, New York’s legalization of recreational marijuana may require revisiting those policies and programs. In particular, the policies should be consistent with the requirement that employers identify “specific articulable symptoms” of impairment, and drug testing panel screens should be updated to exclude testing for THC. Employers who are uncertain of their legal obligations or how best to modify their policies should consult with employment counsel.
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