New York Department of Labor Publishes FAQs on Legalization of Recreational Marijuana

November 3, 2021

On Oct. 8, 2021, the New York State Department of Labor (NYSDOL) published a list of frequently asked questions and answers addressing common issues about the legalization of recreational marijuana and its effect on New York workplaces. The FAQs offer valuable insights for New York employers as they work to navigate the new landscape of legalized marijuana.

On March 31, 2021, former Gov. Andrew Cuomo signed the Marijuana Regulation & Taxation Act (MRTA) legalizing recreational marijuana in New York state for adults. Relevant to New York employers, the MRTA amended New York Labor Law § 201-d to prohibit employers from disciplining or discriminating against employees who recreationally use or consume marijuana outside of work hours, off an employer’s premises, and without using an employer’s equipment or property.

However, employers may take action against employees for marijuana use if: (1) the employer is required to take action under state, federal or other government mandate; (2) the employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease the employee’s job performance or interfere with the employer’s obligation to provide a safe and healthy workplace; or (3) the employer would be in violation of federal law or may lose federal funding by not taking action against the employee.

The MRTA and § 201-d apply to all public and private employers in New York state, but do not cover independent contractors, volunteers, students who are not employees, or individuals working under familial obligations. The FAQs also clarify that the law does not apply to employees who work for New York employers outside New York. Additionally, employees under the age of 21 are not covered, because New York state law prohibits cannabis use by individuals younger than 21.

Employment Actions

The first section of the FAQs addresses when it is appropriate to discipline employees for cannabis use. Since the MRTA went into effect, employers have pressed for a precise definition of the “specific articulable symptoms of cannabis impairment” that must be present for employers to take disciplinary action against employees.

Unfortunately, the NYSDOL declined to provide a precise definition, instead stating: “There 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 ... their position are decreased or lessened.” As an example, the NYSDOL said the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.

The NYSDOL also answered specific questions as to what employers cannot cite as articulable symptoms of impairment, such as observable signs of marijuana use that do not indicate impairment on their own, a test for marijuana usage or the odor of marijuana on an employee.

The NYSDOL stated that employers are not required to: (1) fire or discipline employees who use or are impaired by marijuana on the job; or (2) rehire employees who were terminated for marijuana use prior to its legalization.

Marijuana Use at Work

The FAQs state that employers may prohibit employees from using cannabis during “work hours,” which include paid and unpaid breaks and meal periods, even if employees leave the employer’s premises during those breaks. Additionally, employers may prohibit: (1) the use of marijuana when employees are on call; (2) the use and possession of marijuana while on the employer’s property; and (3) the use and possession of marijuana in company vehicles.

For remote employees, because the NYSDOL does not consider an employee’s private residence to be a “work site,” employers may not prohibit employees who work at home from possessing recreational marijuana in their homes. But employers may discipline employees working remotely in New York if they exhibit specific articulable symptoms of impairment during their working hours.

Workplace Policies

The NYSDOL encourages employers to update or amend their policies regarding marijuana use to reflect the changes to New York state law. The FAQs reiterate that it is lawful for employers to have policies that prohibit the use and possession of marijuana during working hours and on the employer’s property; however, employers cannot require employees to promise or agree to not use marijuana as a condition of employment.

Employee Drug Testing

The FAQs also reiterate that an employer may not test for cannabis unless the employer satisfies the requirements of Section 201-d(4-a) or other applicable laws (e.g., the employer may be in violation of federal or state mandate if it does not drug test employees). But an employer may not test employees for marijuana use “merely because it is allowed or not prohibited under federal law.” Therefore, the NYSDOL has taken the position that an employer may test for marijuana only if it is expressly required to do so by law.

For further information or questions about the MRTA or § 201-d, or for any questions regarding employment laws, please contact the authors, your McGuireWoods contact, or a member of the firm’s labor and employment group.

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