Earlier this year, New York legalized marijuana through the Marijuana Regulation and Taxation Act which permits those 21 years of age and older to consume the substance. This same law modified New York Labor Law Section 201-d to protect an employees’ right to use the substance as long as the use is “outside work hours, off of the employer’s premises, and without the use of the employer’s equipment or other property.”

The New York State Department of Labor has released further guidance regarding these protections titled,  “Adult-Use Cannabis and the Workplace.” This provides considerable information on employee and employer rights regarding cannabis usage, who the law applies to, new policies regarding its use, and defines “impairment.”

What Are Articulable Symptoms of Impairment?

Though employees’ use of cannabis outside of the workplace is protected under New York Labor Law Section 201-d(4-a), an employer may take adverse employment action against a worker that shows signs of impairment while working. This means that an employee must show articulable signs of impairment that decrease their performance or interfere with an employer’s obligation to provide a safe workplace.

These articulable signs are only loosely defined, and according to the guidance, instead of providing a list of symptoms that qualify as articulable symptoms, they are instead “objectively observable indications that the employee’s performance of the duties of their position is decreased or lessened.” This guidance also cautions that the odor of cannabis, as well as a drug test, cannot be used as a sole determination that an employee was impaired.

Use At Work and During Work Hours

This guidance clarifies that employers may enforce prohibitions against the use of cannabis at work and during work hours. The guidance clarifies that cannabis use may be prohibited during all times that an employee is “suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.” For the purposes of the law, this includes all paid and unpaid breaks even if the employee leaves the worksite. Additionally, employers may prohibit employees from bringing cannabis onto their property, including any leased spaces and company vehicles. 

To Whom Does the Law Apply?

The Act, as well as the provisions under New York Labor Law Section 201-d, only protect employees that are 21 years of age or older within New York State. This means that its provisions do not apply to non-employees such as volunteers, independent contractors, or students, as well as those that are employed to work outside the state. 

Testing for Cannabis

Employers are prohibited from testing for cannabis except for under one of three conditions. These include:

• The employee is impaired as provided within the statute.
• The testing is mandated under state or federal requirements.
• Failure to do so might result in the loss of a federal contract or funding.

It is important to remember that though federal law may permit testing under some circumstances, an employer may only perform testing if it is required.

Employer Takeaways

This new guidance provides some much-needed clarification regarding the Marijuana Regulation and Taxation Act which legalized cannabis usage earlier this year. Employers should ensure that their substance abuse policies regarding cannabis usage are compliant with this new guidance.

Pre-employ can help your company stay in compliance with these new guidelines with free resources available to you. Download our guide on 5 Tips To Avoid FCRA Non-Compliance to discover more.