With the decriminalize of cannabis use, employers face new challenges in adopting workplace policies to align with evolving laws. While many states, including New York, protect employees’ off-duty cannabis use, employers must still navigate complex issues related to workplace safety, impairment detection, and compliance with state and federal laws. This article will explore the implications of cannabis decriminalization and answer the common questions employers have been asking us regarding the use of marijuana.
- Q: Is the smell of marijuana enough to terminate or discipline an employee?
A: The aroma of marijuana is generally not enough to either discipline or terminate an employee. In New York and New Jersey, the smell of marijuana alone is not sufficient evidence to take adverse employee action. Under New York Labor Law Section 201-D, the smell of cannabis alone is not evidence of articulable symptoms of impairment. New Jersey Statute Section 24:61-52 also prevents employers from taking adverse employment action against employees who smoke, vape, or otherwise use cannabis items.
- Q: Do employers have to accommodate an employee’s medical cannabis use?
A: Accommodation for medical cannabis use depends on state laws and the nature of the employee’s job. Employers in New York and New Jersey are not required to permit certified medical marijuana users to bring marijuana into the workplace or to use it on the premises. Nothing in either state’s laws requires an accommodation that permits the use of marijuana during work hours, break times, or while operating or navigating machinery in the performance of one’s job duties.
However, under New Jersey’s Compassionate Use Medical Marijuana Act and under New York’s Human Rights Laws, certified medical marijuana users are considered disabled individuals. This means employers will be required to accommodate an employee’s lawful use of medical marijuana in certain circumstances. For example, modifying work schedules, reassigning an employee to a role that does not involve operating heavy machinery, and granting leave for medical treatments have been viewed as reasonable accommodations for medical marijuana users.
- Q: What are symptoms of impairment employers should be wary of?
A: It is challenging to produce a non-exhaustive list of symptoms of cannabis impairment because symptoms may indicate the existence of a disability unrelated to cannabis use. New York’s Department of Labor has maintained that articulable symptoms of cannabis impairment are those that either decrease or lessen the employee’s performance of their duties or interfere with the employer’s obligation to provide a safe and healthy workplace. Observable signs such as the smell of marijuana, bloodshot eyes, irrational and unusual behavior, as well as delays in speech, physical dexterity, agility, and coordination alone are not enough. Instead, they must be observed in connection with performance issues.
- Q: Can an employer randomly test employees for cannabis in the workplace?
A: Random drug testing policies are permissible but must comply with state laws. Employers in New York are generally not allowed to conduct random cannabis testing in the workplace. Under Labor Law 201-D, there are only a limited set of circumstances where an employer can drug test employees. Examples of these limited circumstances include when state or federal regulations require it, when the employee’s worsened job performance is accompanied by articulable symptoms of impairment, or when such symptoms interfere with the employer’s obligation to provide a safe and healthy workplace that is free from hazards.
In New Jersey, employers have slightly more freedom to conduct random cannabis testing. Random drug testing is permitted for safety-sensitive positions. Examples of such positions include healthcare workers, aviation personnel, commercial drivers, and heavy machinery operators. These positions are so fraught with hazards, that attempting to perform them while impaired by cannabis could pose a threat to co-workers, the workplace, and the public. While drug testing in these situations may be conducted, a positive test result cannot be the sole reason for taking adverse employment actions against the employee.
- Q: Can employers prohibit employees from consuming cannabis during break times or meal periods?
A: Yes, employers can prohibit the consumption of cannabis during breaks or meal periods, especially if it affects workplace safety or productivity. In New York, employers can prohibit cannabis use during “work hours.” The definition of “work hours” under New York Labor Law includes all paid and unpaid breaks, such as meal periods. Similarly, New Jersey law allows employers to maintain drug-free workplaces during work hours. The Food and Drug statutes in New Jersey explicitly state that employers are allowed to prohibit the possession or use of intoxicating substances on the premises of the workplace outside of work hours as well.
Takeaway
Understanding the legal limitations on discipline, drug testing, and accommodations is crucial in avoiding liability and ensuring a fair and lawful approach to cannabis use in the workplace. By implementing clear policies, staying informed of regulatory changes, and addressing impairment concerns appropriately, employers can navigate this shifting landscape of cannabis laws while upholding their obligations to both employees and workplace safety.