The New York Department of Labor (DOL) has released new guidance and FAQs to answer questions regarding the Marijuana Regulation and Taxation Act (MRTA). The MRTA became effective earlier this year and legalized marijuana consumption and possession by adults 21 years of age and over. Under this law, New York employers are prohibited from discriminating against those who legally consume cannabis off duty, off the employer’s premises, and not using the employer’s property.
This new guidance provides that marijuana testing can only be performed under very narrow circumstances. Further, such a test cannot be used as the basis for concluding that an employee was impaired by marijuana and the smell of the substance on its own is not evidence of an articulable symptom of impairment.
Notable provisions for employers include that they may take action based on cannabis use if:
No list of articulable symptoms is provided in either of these two new sources. Instead, the FAQ states that employers must use objective observable indications that a given employee’s performance at performing their duties has suffered. This guidance also warns that these same symptoms could also be indicative of a protected disability, including ones that are unknown to an employer.
However, this guidance does provide for some factors that may not be considered as an articulable sign of impairment, starting with any observable sign of marijuana usage. Neither the smell nor testing for marijuana can serve as an articulable sign of impairment. The only factors that may be considered are those that objectively and observably demonstrate a loss of performance.
Finally, the FAQ does address testing further as well to clarify that just because federal law provides that an employer may perform testing does not mean that they are capable of it under state law. An employer only may perform testing if it is directly required by federal or state law.
An employer is still permitted to prohibit the consumption of marijuana on their premises as well as during any work hours, both on-call and during any rest or break periods. They may also prohibit it when using any company equipment, including while in company vehicles.
Employers have had time since the introduction of MRTA to begin adjusting to its requirements. However, these new sources of guidance do present some new sources of information that clarify several points. This means that employers should review their policies and ensure that they comply with this new information.