Cannabis and Employment: What's the Deal with Drug Testing?

Cannabis and Employment: What’s the Deal with Drug Testing?

Cannabis and Employment: What’s the Deal with Drug Testing?

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In March 2021, New York enacted the Marijuana Regulation and Taxation Act (“MRTA”) legalizing recreational cannabis use for adults and amending New York Labor Law Section 201-D to protect employees who use cannabis.  The law states that cannabis used in accordance with New York State law is a legal consumable product and employers are prohibited from discriminating against adult employees who legally use cannabis products outside of the workplace, outside of working hours and without use of the employer’s equipment or property.  Initially, there were many unanswered questions about the law, but the Department of Labor released guidance addressing frequently asked questions by both employees and employers.  We will highlight the main points here.

When Does MRTA Apply?

MRTA applies to public and private employers in New York, regardless of size, industry, or occupation.  The law does not apply to independent contractors, volunteers and employees who work remotely in other states with different marijuana laws.  Employees under the age of 21 also are not protected by the law because they are prohibited from using cannabis.

Can Employers Drug Test for Cannabis?

Drug testing is not allowed under state law simply because it is permissible under federal law.  Under MRTA, employers cannot test employees for cannabis except when permitted to do so under the provisions of Labor Law Section 201-D(4-a) or other applicable state or federal law.  However, employers can conduct a cannabis test if a drug test is a requirement for the position according to state or federal law.

Cannabis tests are also not allowed as a means to assess whether an employee is impaired because such tests are not considered to be a conclusive indicator of impairment.

Can Employees Use Cannabis on the Job?

Employees may be prohibited from possessing and using cannabis when they are expected to be working or “on call,” including during paid and unpaid breaks and meal periods and while in a company vehicle.

However, employers cannot regulate what employees do outside of the workplace.  With respect to employees working from home in New York, employers may institute a general policy prohibiting use during working hours.  However, a private residence is not considered a worksite for purposes of this law, so an employer may take action against an employee only if an employee is exhibiting articulable symptoms of impairment during work hours.

What Actions Can Employers Take Against Employees Who Use Cannabis?

The law allows employers to discipline employees if they are using cannabis during work hours or their cannabis use impairs their workplace performance.  The employee must manifest specific articulable symptoms of impairment that:

  • Decrease or lessen the performance of their duties or tasks; or
  • Interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws.

The difficulty for employers is that there is no definitive list of symptoms of cannabis use impairment.  The employer must use other objective metrics to assess whether performance has been negatively affected.  As noted previously, a drug test cannot be used as evidence of impairment and a noticeable cannabis odor is also not sufficient.

Employers cannot ask prospective employees to waive their rights or agree not to use cannabis outside of the workplace as a condition of employment.

Does an Employer Have to Rehire Employees Fired for Previous Cannabis Use?

MRTA does not require rehiring of employees who were terminated due to cannabis use prior to the law’s passage.

What Other Steps Should Employers Take?

Being proactive can avoid significant liability under MRTA, so employers should review their employment applications, employment agreements and employee handbooks to ensure compliance with the law.  In addition, supervisors and hiring managers should receive appropriate training in how to avoid discriminatory conduct as well as how to recognize articulable signs that may demonstrate impairment.

If you need guidance for your business or believe you have a claim against your employer, contact our employment and cannabis attorneys to discuss your matter.

Photo by Kimzy Nanney on Unsplash

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This Blog is made available by Romano Law PLLC for general informational and educational purposes only, not to provide specific legal advice. By using this Blog you understand that there is no attorney client relationship between you and Romano Law PLLC or any individual contributor. You should consult a licensed professional attorney for individual advice regarding your own situation.

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