New York: NYDOL Publishes Guidance on Recreational Marijuana and Workplace Prohibitions

APPLIES TO

All Employers with NY Employees

EFFECTIVE

October 8, 2021

QUESTIONS?

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Earlier this year, the Marijuana Regulation and Taxation Act (MRTA) became effective, legalizing recreational marijuana use and possession for adults aged 21 and older. In October, the New York state Department of Labor published additional guidance and an FAQ addressing questions on employer rights and responsibilities with regard to managing marijuana usage and the workplace.

According to the guidance, drug testing for marijuana is generally not permitted except under limited circumstances, and employers may not use a drug test result as the basis to conclude that an employee was impaired by marijuana. Employers are permitted to take employment actions related to marijuana usage in limited scenarios, such as:

Employer is/was required to take action due to state or federal requirements;
Employer would violate federal law or lose a federal contract/funding; or
Employee manifests specific, articulable symptoms of cannabis impairment (defined as objectively observable indications that performance of duties has decreased or lessened—not just marijuana odor by itself) during working time that decreases the performance of their tasks or duties, or interferes with the employer’s obligation to provide a safe and healthy workplace as required by state and federal law.

Notably, an employer may not drug test for marijuana use merely because federal law prohibits it. Such testing may only take place if state or federal law actively requires testing or makes it a mandatory component of the position.

Employers are still permitted to prohibit use of marijuana during work hours, which includes on-call time, regular working hours, and during paid and unpaid breaks and meal periods. Such hours are still considered working time even if the employee leaves the worksite.

Action Items

Have substance abuse policies updated.
Have drug screening procedures updated.
Train appropriate personnel on when drug testing is and is not permitted, and how to recognize impairment.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.