By: Ty Hyderally, Esq., Francine Foner, Esq., Nina Lucibello

Earlier this year, the New York State Marijuana Regulation and Taxation Act (“MRTA”), which legalized the recreational use of marijuana for adults over the age of 21, was signed into law.[1] As such, many people were left questioning what this meant for workplace drug testing. In response, the New York State Department of Labor (“NYDOL”) has issued guidelines entitled “Adult Cannabis Use and the Workplace” (the “Guidelines”), in the form of Frequently Asked Questions (“FAQs”).[2] The Guidelines finally answered many of the questions about New York employer and employee rights concerning workplace drug testing for cannabis.

Importantly, the statutory language of the MRTA itself does not prohibit drug testing for cannabis. However, the newly issued Guidelines dictate that New York employers may not test applicants or employees for cannabis, unless:

1. The employer is required to conduct such testing by state or federal law (e.g., safety-sensitive transportation employees regulated by the Department of Transportation).
2. The employer would otherwise be in violation of federal law.
3. The employer would otherwise lose a federal contract or federal funding.
4. The employee, while working, “manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties.”[3]
5. The employee, while working, “manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.”[4]

With regard to the “specific articulable symptoms of cannabis impairment” exceptions, the Guidelines do not explicitly define “impairment.” However, the Guidelines do state that impairments are “objectively observable indications that the employee’s performance of the duties of [ ] their position are decreased or lessened.”[5] Thus, the Guidelines indicate that stereotypical indications of cannabis use alone, such as the smell of cannabis or red eyes, do not qualify as “specific articulable symptoms of cannabis impairment.”

Notably, the Guidelines also clarified that employers cannot prohibit the use of cannabis while employees are on leave, unless the employer is permitted to do so under one of the above exceptions. However, employers may prohibit cannabis during “work hours,” including when employees are on-call or “expected to be engaged in work.”[6] Moreover, with the recent uptick in remote work, employers may not prohibit remote employees from using or possessing cannabis at home, and may only take action against remote employees if the employee exhibits “specific articulable symptoms of cannabis impairment” during work hours.[7]

Overall, these Guidelines provide clarification on many workplace issues that arose from the recent legalization of recreational marijuana use. The Guidelines should help to avoid penalization and drug testing of New York employees, who do not fall within any of the above- described exceptions, for their lawful use of Cannabis. For more information and to view the FAQs, visit: https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf.

En nuestra firma hablamos español. This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.

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[1] Senate Bill 854-A, https://legislation.nysenate.gov/pdf/bills/2021/S854A.

[2] See Adult Use Cannabis and the Workplace, New York Labor Law 201-D, https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf.

[3] Id. at 1.

[4] Id.

[5] Id.

[6] Id. at 2.  

[7] Id.