By Diana Plue, Esq., Sheats & Bailey, PLLC
The Marijuana Regulation and Taxation Act (MRTA) amended Labor Law § 201-d to clarify that marijuana is a legal consumable product. Employers may not discriminate against employees that use marijuana outside the workplace and outside of work hours. This new law raised questions with regard to an employer’s ability to drug test for marijuana and enact disciplinary action for marijuana use. NYS DOL recently issued guidance for employers with regard to these issues.
The NYS DOL has stated that employers may have a written policy prohibiting the use of marijuana during work hours including breaks, while on employer property and in company owned vehicles. An employee who takes a company owned vehicle home can be prohibited from using marijuana in the work vehicle even outside work hours.
Can an employer drug test an employee or potential employee for marijuana?
- An employer may drug test for cannabis if a federal or state law makes it a mandatory requirement of the position or the federal contract makes it mandatory. For example, employees who drive commercial vehicles are subject to mandatory drug testing for commercial vehicles under 49 CFR Part 382.
Please note that the Drug Free Workplace Act of 1988 does not mandate or authorize drug testing of employees. Therefore, a federal contract that just states an employer must comply with the Drug Free Workplace Act of 1988, does not authorize a NYS employer to test its employees for marijuana.
- An employer may drug test when required by a federal contract or to maintain federal funding.
- An employer may drug test, when the employee, while working, shows specific articulable symptoms of impairment that either decrease the employee’s performance or interferes with the employer’s obligation to provide a healthy and safe workplace.
A positive test for marijuana, by itself, cannot be used to make employment decisions regarding hiring, promoting or terminating an employee unless there is a federal or state law or federal contractual requirement that requires employees/workers to be drug free. Therefore, unless there is a federal or state mandatory drug test requirement or a federal contractual drug test requirement for marijuana, employers should never require a pre-employment drug test for marijuana or perform random drug testing for marijuana.
The DOL guidelines clearly state that an employer can only drug test for marijuana for the above reasons. Neither the DOL nor Labor Law § 201-d (4-a) mentions that an employer may take action such as testing because of a collective bargaining agreement.
What are articulable symptoms of impairment? Per the NYS DOL, they are objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened. For example, the operation of heavy machinery in an unsafe manner may be considered an indication of impairment. DOL does not provide any further clarification or list of articulable symptoms but does state what cannot be cited as an articulable symptom.
The following symptoms by themselves are not articulable symptoms of marijuana use:
- Observable signs of possible marijuana use that do not indicate impairment on their own. For example, red eyes with nothing more does not indicate impairment because red eyes with no other symptoms could be from allergies or lack of sleep.
- A positive drug test for marijuana usage by itself cannot serve as a basis for an employer’s conclusion that an employee was impaired. All the test will show is that there is cannabis in the employee’s system, which can be detected up to 30 days after use; the positive test alone does not show impairment.
- The smell of cannabis on an employee, on its own, is not evidence of an articulable symptom of impairment under Labor Law §201-d. Use of cannabis does not automatically mean a person is impaired.
Can an employer discipline an employee for marijuana use?
An employer may take adverse action against an employee:
- Who is using marijuana during work hours (including during breaks and during periods an employee is on call);
- Who uses marijuana on employer property;
- Who uses marijuana in company owned vehicles;
- Who is impaired by marijuana and exhibits specific articulable symptoms of impairment that
- Decrease or lessen the performance of the employee’s duties or tasks;
- Interferes 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.
- When required to by State or Federal Law;
- When the employer would lose a federal contract or federal funding because of employees’ marijuana use. If a project requires employees to obtain a clean drug test to work on the project, employers should give notice of this requirement to its employees and the potential consequences if said drug test is failed.
Labor Law §201-d applies to private, state and local government employers. Labor Law §201-d only applies to employees who work within NYS and are over the age of 21. Marijuana use is still prohibited for anyone under the age of 21. Employers cannot require employees to waive their rights under Labor Law §201-d. For remote workers, the DOL does not consider a private residence a worksite within the meaning of Labor Law §201-d. But an employer may act against a remote worker if the worker is exhibiting articulable symptom of impairment during work hours.
An employer who violates Labor Law § 201-d by refusing to hire, refusing to promote or discharging an employee from employment because of said employee’s legal use of marijuana outside of work hours and off work property can be subject to civil penalties and to civil actions from their employees.
Employers who wish to prohibit employees from working while impaired should have a written policy prohibiting such conduct and stating the consequences for working while impaired. Employers need to train their supervisors on what type of symptoms of impairment to look for. Employers should also update their work policies, including handbooks, to make sure their current policies do not run afoul of this new legislation. Employers must review and update any drug testing policy so it complies with The Marijuana Regulation and Taxation Act (MRTA) and Labor Law § 201-d.
For more information or assistance in drafting a written policy on marijuana use and/or updating current workplace policies including drug testing policies to be compliant with Labor Law §201-d contact Diana Plue at Sheats & Bailey, PLLC, Tel: (315) 676-7314.
The information provided in this article is not intended to serve as specific legal advice for any particular situation. Competent legal and experienced counsel should be consulted.