In March 2021, New York legalized the recreational use of marijuana and cannabis products for individuals over 21 years of age. This Act protects an employee’s right to use consumable products, including cannabis. However, that doesn't mean workers can start showing up to work with a buzz.
Here is everything you need to know about New York State Cannabis Laws and the rules for when you are at work.
Cannabis in the Workplace in New York
With the passing of the New York Marijuana Regulation and Taxation Act (MRTA) individuals in the state of New York who are 21 years or older may now use and obtain marijuana legally for recreational use.
Whenever such a law is passed in a state, one of the immediate concerns is how it will affect the workplace.
New York Cannabis Rules for Employees
While your employee's right to use cannabis is protected in New York, the use must be:
- Outside of work hours;
- Off of the employer’s premises; and
- Without the use of the employer’s equipment/other property
Employer Requirements and Restrictions
It is important to note that employers may not:
- Prohibit the use of cannabis outside of the workplace
- Require that employees promise or agree not to use cannabis as a condition of employment
Admissable Prohibitions by Employers Regarding Cannabis
Employers are allowed to:
- Prohibit cannabis possession at work, including leased and rented spaces, company vehicles, and areas used by the employee within the company property (lockers, desks, etc.)
- Prohibit the use of cannabis during periods in which the employee is on-call or “expected to be engaged in work
When setting such standards, employers should ensure they understand the rules of New York At-Will Employment Law before considering terminating an employee under these prohibitions.
What is Cannabis Impairment?
Crucial to understanding the rules of cannabis in the workplace, employers need to understand the definition of cannabis impairment under the law.
To be impaired by cannabis, the employee must “manifest articulable symptoms” which the State defines as:
- Decreasing or lessening an employee’s performance of their duties or tasks; OR
- Interfering with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by State and Federal occupation safety and health laws
To summarize, there needs to be a sign of impairment, plus a potential adverse consequence to the employer, in order to take disciplinary action against the employee. So in theory, it isn't technically "illegal" to be "high" at work.
In fact, the smell of cannabis alone is not considered a sign of impairment, and therefore can not be the sole reason for disciplinary or adverse action. This further highlights the complexity of this law, so it is crucial that employers familiarize themselves to avoid taking any unlawful disciplinary action.
How to Tell if an Employee Is High at Work
Employers in New York need to be sure about an employee's impairment before taking action.
Here is a checklist for determining if an employee is impaired by cannabis:
Step 1: Determine whether the employee is using cannabis during work hours. If the company has a policy prohibiting the use or possession of cannabis during working hours, and the employee used cannabis during those hours, then the company can take adverse action. Note that in New York, lunch and other breaks are considered working hours, even when off of company premises.
Step 2: Determine whether the employee used cannabis on company premises. Although an employee can use cannabis before work and after work, the company can still take adverse action if the employee, for example, used it in their car, which was parked in the company parking lot.
Step 3: Determine if the employee is displaying specific, articulable symptoms of cannabis use. Does the employee have slowed speech, poor coordination or is having difficulty operating company equipment? If a manager or supervisor believes that the employee does have symptoms of impairment, they should ask another supervisor to confirm. Having more than one supervisor observe the behavior, and then document it, will help when defending against potential lawsuits.
Step 4: Determine if the job description implies safety implications. Remember, conduct that “interfere[s] 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” is part of the analysis too.
Step 5: Determine if the employee’s job performance is decreased or lessened. If the employee is not functioning to their normal capacity, more than one person observes this, and they are suspected to be using cannabis, then it is likely that the company can take adverse action.
Drug Testing
It is important to note that a positive drug test for cannabis is not enough to take adverse action against an employee. This is mainly due to the fact that because cannabis, or rather THC is found in an employee's system, it does not mean they have broken any of the above requirements.
Employers may drug test for cannabis if the employee was involved in an accident during work hours or with company property. Employers may also drug test for cannabis if there is “reasonable suspicion” to believe that the employee was impaired by cannabis.
The New York State DOL takes the position that employees should not be tested for cannabis pre-employment. However, an employer can drug test an employee if Federal or State law requires drug testing or makes it a mandatory requirement of the position (i.e. mandatory drug testing for drivers of commercial motor vehicles in accordance with NY Vehicle and Traffic Laws).
Get Help with New York Cannabis Laws
As it is a rather complicated law, it is important that employers understand what is allowed and what is prohibited in New York regarding cannabis.
Employers should start by ensuring they have employee handbooks with the proper policies in place to protect them against legal trouble.
To get started with an employee handbook review, or other New York HR services, contact us today.
