On October 8, 2021, the New York State Department of Labor (NYS DOL) published guidance relating to adult-use cannabis and the workplace under the Marijuana Regulation & Taxation Act (MRTA). The MRTA, which was enacted on March 31, 2021, legalizes and regulates the use, production, and sale of adult-use cannabis.
The MRTA, among other things, amended Section 201-D of the New York Labor Law. Section 201-D makes it unlawful for employers – both public and private, regardless of size – to take adverse employment actions against employees for engaging in lawful, off-duty recreational conduct. The MRTA added off-duty marijuana use to the list of such conduct.
However, under the MRTA, employers may:
- Take appropriate action as to an employee whose off-duty conduct “creates a material conflict of interest related to the employer’s … proprietary or business interest.”
- Take appropriate action against an employee who “manifests specific articulable symptoms” of being under the influence of cannabis while on the job. The “specific articulable symptoms” for which an employer may take action against employees must either: (i) decrease or lessen the performance of their duties or tasks; or (ii) 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.
- Prohibit the actual consumption or possession of cannabis on its premises.
- Prohibit cannabis consumption during break periods or periods when the employee is “expected to be engaged in work.”
An employer may not:
- Take an adverse employment action against employees just because of a positive test for use of marijuana or a noticeable odor of marijuana.
- Perform drug testing unless an employer falls within one of the limited exceptions outlined in § 201-d(4-a). Essentially, an employer may administer a drug test for cannabis only “if federal or state law requires drug testing or makes it a mandatory requirement of the position.”
- Require employees to waive the protections of Section 201-D as a condition of future or continued employment.
The October 8th guidance will likely have an effect on your current drug screening protocols. It is worth noting that New York City has banned pre-employment testing for marijuana since May 2020. The MRTA expands that ban state-wide (with limited exceptions) and limits employers’ rights to test current employees for marijuana. Thus, it is important for employers to review their practices to ensure they are in compliance with the MRTA. We are available to help.
If you have additional questions or concerns about complying with the MRTA, please contact Chaim Book at cbook@mb-llp.com, Sheryl Galler at sgaller@mb-llp.com, or Melanie Sarver at msarver@mb-llp.com.
