On October 8th, the New York Department of Labor (“DOL”) issued guidance addressing how employers should handle drug testing in order to comply with the Marijuana Regulation and Taxation Act (“MRTA”). The MRTA, which came into effect on March 31st, legalized cannabis use for individuals over 21 years or age, and prohibited adverse action against applicants and employees that use cannabis. However, employers were left wondering how to adjust their practices to be in compliance with the new law. This article will discuss how the guidance has addressed some of these concerns.
Although the guidance reiterated many of the same points as the MRTA, it provides more specific details on how to handle drug testing and what to do about employees that employers believe are under the influence while at work.
The discrimination section explains what actions employers are permitted to take under the MRTA. Employers are permitted to take action relating to employee cannabis use if the action is required by state or federal law or if failing to take action would violate federal law. Another case where action is permitted is if an employer is in danger of losing a federal contract or federal law. This is due to cannabis use and possession still being classified as a federal offense, even though it has been legalized by over a dozen states.
A more common concern of employers has been how to approach situations where they believe their employees may be under the influence at work. The guidance states that employers are permitted to act when while working, an employee “manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties,” or “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 workplace safety laws.” So not only is employer permitted to act when their may be safety concerns, but also when an employee is not working up to the required performance levels.
The meaning of “specific articulable symptoms” was then explains in the FAQ section as “objectively observable indications that the employee’s performance of the duties of the position of their position are decreased or lessened.” The guidance also cautions employers that some symptoms they believe to be due to cannabis use may also be symptoms of a protected disability and to tread lightly to avoid exposing an unknown disability or discriminating based on the symptoms.
Symptoms that cannot be claimed by the employer are classified as those that on their own do not indicate impairment, and uses as an example, the odor of cannabis. When taking all symptoms as a whole, they must provide observable indications that the employee is not performing their essential duties or performing them less well than usual or necessary before any action can be taken by the employer.
Another top concern for employers addressed by the FAQ is workplace possession and breaktime usage. As per the guidance, employers are allowed to prohibit both possession of cannabis on work property and usage during meals or break periods. Meals and breaks are both considered “work hours” even if the employee leaves the work property. However, this does not apply to remote workers as their private residence does not qualify as a worksite under the MRTA. Employers can still take action against remote workers if they exhibit articulable symptoms of impairment.
As for drug testing, the FAQ specifically states that employers are not permitted to test for cannabis unless one of the exceptions listed in the discrimination section above applies. Although cannabis testing may be permitted by federal law, under the guidance, employers are still prohibited from testing their employees without cause. Employers can drug test for cannabis if federal or state law requires the testing, or if it is a mandatory requirement of the position, such as for drivers of commercial vehicles.
The DOL’s guidance clarified many questions left by the MRTA. Now, employers are more aware of what policies they can put in place, when they can act on suspected cannabis use at work, and when drug testing for cannabis is permitted.