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Thursday, October 6, 2022

New York State Guidelines for Cannabis Drug Testing for Employees

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New York State Department of Labor (“NYDOL”) Help instructions Addressing frequently asked questions regarding recreational cannabis use by employees inside and outside the workplace in light of The Marijuana Regulation and Taxation Act was enacted earlier this year (“MRTA”).

The MRTA has approved recreational marijuana use for individuals 21 years of age or older. Particularly for employers, the law also amended Section 201-d of the New York Labor Code — which prohibits employer discrimination against an employee due to certain legitimate outside work activities — to include protections for recreational cannabis use. As such, employers are now prohibited from discriminating against employees based on their use of cannabis outside the workplace, outside work hours, and where the use does not include the employer’s equipment or property.

The main findings from this guidance are discussed below.

Applicability

The Guidelines make it clear that the prohibition of discrimination on the grounds of cannabis use applies to them everyone Employers are both public and private in New York State, regardless of size, industry or profession. However, both the MRTA and Section 201-d apply only to employees and so the protections do not extend to independent contractors and volunteers.

Furthermore, the directive emphasizes that neither the MRTA nor Section 201-d protects illegal The use, sale or transfer of cannabis. As such, the laws do not provide cannabis-related protections for employees under the age of 21, as they are currently prohibited from using recreational cannabis in New York.

Use of cannabis at work or during working hours

Under the MRTA, employers generally have broad discretion to prohibit the use of cannabis on the job site during business hours. The directive states that employers may also prohibit employees from possessing cannabis on the worksite or on the employer’s property, including in company vehicles, rented spaces, and employee-used areas on company property (for examplecabinets and offices). The guidance also states that the “hours of work” during which employers may prohibit cannabis use include:

  1. the time the employee is on call or “expected to participate in the work”; And

  2. Time, “including paid and unpaid breaks and meal periods, that the employee has experienced, is allowed or is expected to participate in the work, and for the entire time the employee is actually engaged in work.”

However, employers cannot prohibit the use of cannabis while employees are on leave unless the employer is permitted to do so in accordance with Section 201-d(4-a), as discussed in more detail in the next section.

Moreover, NYDOL does Not The private residence of an employee used for telecommuting was considered a “work site” within the meaning of the law. However, employers may establish a general policy that prohibits the use of cannabis during working hours and take negative action against an employee who shows obvious symptoms of impairment (discussed in more detail below), even while the employee is working remotely.

Drug testing and other procedures based on workplace impairment

Section 201-d(4-a), as amended by the MRTA, generally prohibits employers from taking negative action against employees for their use of legal cannabis outside the workplace and outside of business hours, except in the following cases:

  1. The employer is required to take such action under state or federal law;

  2. If your employer is in violation of federal law or could lose a federal contract or federal funding; or

  3. Employee at work appears Clear specific symptoms of weakness that diminish or diminish employee performance or conflict with the employer’s obligation to provide a healthy and safe workplace.

With regard to this, the guidance expressly states that employers are also prohibited from using cannabis drug testing personnel to use cannabis unless one of the above exceptions applies.

Furthermore, with respect to the second exception, the directive states that employers may test an employee for cannabis only if state or federal law required Drug testing or making it a mandatory job requirement. Employers cannot rely on the second exception to testing an employee for cannabis simply because it is permitted or not prohibited by law.

The guidelines also provide additional information on what is meant by “obviously specific symptoms of a disability.” Under the MRTA, an employer is not prohibited from taking adverse action against an employee if the employee develops cannabis on the job, regardless of whether the employer has adopted an explicit policy prohibiting cannabis use. According to the Guidelines, to meet the “impairment” criterion, employers may cite only “symptoms that provide objectively observable indications that the employee’s performance of the duties or tasks essential to his or her position has decreased or decreased.” This may include, for example, operating heavy machinery in an unsafe or reckless manner.

However, the guidelines state that the scent of cannabis, in and of itself, is not considered a “clear specific symptom of vulnerability.” Furthermore, a drug test that is positive for cannabis also cannot be used to prove that an employee has been affected by cannabis at work, because such tests do not show current weakness.

Takeaway

The provisions of the MRTA governing cannabis use and the workplace went into effect immediately after their issuance in March 2021. The guidelines state that employers are not allowed to maintain pre-existing policies prohibiting the use of cannabis outside the workplace in violation of the MRTA, unless they are permitted to do so in accordance with Section 201 -D (4-a). Therefore, employers should review workplace policies and practices to ensure compliance with these modern requirements.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, No. 300

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