As we previously reported earlier this year, Governor Cuomo signed the Marijuana Regulation and Taxation Act (“MRTA”), which legalized adult-use and possession of cannabis, effective March 31, 2021. The MRTA amended Section 201-D of the New York Labor Law (“NYLL”) making it illegal for employers to discriminate against someone for their use of cannabis outside the workplace, outside of work hours and while not using their employer’s equipment or property.

This spurred some obvious questions from employers- Can we take action against an employee for using cannabis while working? Can an employee use cannabis while on breaks? What about employee use of cannabis if they are not at work on premises but are on call? The New York Department of Labor has now published FAQs addressing these, and other, common employer questions.

Some key takeaways from the guidance are as follows:

Permitted Actions

Employers can still take action or prohibit employee conduct where (1) it is/was required to do so by state or federal statute, regulation, or ordinance, or other state or federal government mandate; (2) it would be in violation of federal law; (3) it would lose a federal contract or federal funding; (3) 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; or (4) 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 law.

Symptoms of Cannabis Impairment

The DOL does not provide a list of “articulable symptoms of cannabis impairment” but rather explain that such symptoms must be “objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.” The example provided by the DOL is the operation of heavy machinery in an unsafe and reckless manner.

The DOL does however, tell employers what they cannot do. Specifically, an employer cannot test for cannabis (unless required by federal or state law) and cannot use the results of a drug test in support of a conclusion that an employee was impaired by the use of cannabis. Employers are also not permitted to rely solely on the smell of cannabis as evidence of an articulable symptom of impairment.

However, employers can (but are not required) to take disciplinary action against employees who are using cannabis during work hours or for on the job impairment. Employers are also allowed to prohibit cannabis use in company vehicles and on premises after regular business hours or work shifts and can prohibit employees from bringing cannabis onto company property, which too includes company vehicles and areas used by the employees, such as lockers and desks.

Breaks and On-Call Time are Considered “Work Hours”

“Work hours” include paid and unpaid breaks and meal periods, all time the employee is suffered, permitted or expected to be engaged in work (including time that the employee is on-call) and all time the employee is actually working. All such periods are still considered “work hours” even if the employee leaves the worksite.

No Obligation to Re-Hire Previously Terminated Employees

While the MRTA automatically expunges convictions for marijuana-related activity made legal under the law, the DOL explains that employers have no obligation to rehire former employees who were previously terminated due to cannabis use prior to its legalization.

Application of the MRTA and NYLL Section 201-D

The MRTA only allows adults 21 or older to possess and use cannabis products.

The MRTA and NYLL Section 201-D applies to all public (state and local government) and private employers in New York State, with no exceptions. However, they only apply to employees employed within the State of New York. As such, employees that work remotely in another state are not covered. Other examples of individuals who are not considered employees and therefore not covered are students, independent contractors, individuals working out of family obligation, and volunteers.

The DOL also clarifies that it does not consider an employee’s private residence as a “worksite.” However, employers can still maintain a general policy prohibiting use of cannabis during work hours and can still discipline employees who exhibit articulable symptoms of impairment during work hours.

Employers cannot require employees to waive their rights under Section 201-D as a condition of employment.

The guidance does not address the medical use of cannabis.