New York State Department of Labor Issues Guidance Concerning Employee Cannabis Use

On October 8, 2021, the New York State Department of Labor (NYSDOL) published guidance to employers concerning "Adult Use Cannabis and the Workplace." New York employers with drug screening protocols should review their practices in light of this guidance to ensure compliance with New York's Marijuana Regulation and Taxation Act (MRTA).

Much of the NYSDOL's guidance covers ground already established by the MRTA. For example, the guidance reinforces that an employer may take appropriate action against an employee who "manifests specific articulable symptoms" of being under the influence of cannabis while on the job.

However, according to the NYSDOL's guidance, those "specific articulable symptoms" must either:

• (i) Decrease or lessen the employee's performance of duties or tasks; or
• (ii) Interfere with the employer's duty to provide a safe and healthy workplace before the employer may take appropriate corrective action.

The guidance makes clear that, according to the NYSDOL, reporting to work with a "noticeable odor of cannabis" together with other indicia of cannabis use (including, for example, bloodshot eyes) are insufficient to warrant corrective action. According to the guidance, "Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment."

Instead, an employer must be able to point to "symptoms that provide objectively observable indications that the employee's performance of the essential duties or tasks of their position are decreased or lessened" before it may take corrective action as to an employee who reports to work while under the influence of cannabis.

The guidance also makes clear that an employer need not allow the actual consumption or possession of cannabis on its premises, or to allow cannabis consumption during break periods or periods when the employee is "expected to be engaged in work" (which includes times when the employee is on call and, presumably, immediately before the start of a scheduled work shift).

The guidance establishes that, with the rare exception of those employers who are required by law to test for the presence of cannabis metabolites, drug testing for cannabis use is inconsistent with the MRTA. Specifically, the guidance states that "an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law."

The guidance specifically notes that the federal Drug Free Workplace Act does not require that federal contractors have in place a drug testing protocol. Instead, an employer may administer a drug test for cannabis only "if federal or state law requires drug testing or makes it a mandatory requirement of the position." This includes, for example, commercial and for-hire motor vehicle operators.

The MRTA, which former Governor Cuomo signed into law on March 31, 2021, amended Section 201-D of the New York Labor Law to put off-duty cannabis use on the same level of lawful, off-duty conduct as running for public office and being a member of a union. Section 201-D makes it unlawful for employers to take adverse employment actions against employees for engaging in these and other activities (including watching a particular television show or engaging in a hobby).

Section 201-D includes a number of exceptions to the rule that an employer may not take adverse action against an employee who engages in lawful, off-duty conduct. For example, nothing in Section 201-D prevents an employer from taking appropriate action as to an employee whose off-duty conduct "creates a material conflict of interest related to the employer's … proprietary or business interest."

Accordingly, a not-for-profit organization that provides abstinence-based substance abuse treatment services or an all-ages punk-rock venue that embraces a drug-free, "straight edge" ethos may take action against an employee whose off-duty cannabis use creates a conflict of interest with those business interests. Employers are encouraged to consult with counsel to determine whether an employee's off-duty cannabis consumption presents such a conflict, as a per se bar to cannabis use—even by organizations that have publicly espoused an opposition to such use—is inconsistent with the MRTA.

DWT attorneys are available to provide advice and counsel to employers in New York to ensure compliance with the MRTA.