On October 19, 2021, NY Department of Labor issued guidance concerning New York’s “lawful off duty conduct law,” Section 201-D of New York Labor Law, in light of NY’s recent legalization of marijuana under the Marijuana Regulation and Taxation Act (“MRTA”).
Generally, Section 201-D limits employers’ ability to take adverse action against employees who engage in certain statutorily defined “protected” activities, such as engagement in political speech, outside of the workplace. Among other things, the MRTA amended Section 201-D to include the legal use of cannibals and other lawful consumable products as protected activity under Section 201-D. In other words, NY employers are now prohibited from discriminating against employees based on the employee’s use of legal cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property. In contrast, the illegal use, sale, or transportation of cannabis is not protected by Section 201-D of the Labor Law.
However, Subsection 4-a of the law says that employees may still take adverse action against employees based on an employee’s use of cannabis where:
- employer’s actions are otherwise required by state or federal law,
- the employee is impaired by the use of cannabis, or
- employer’s actions would result in the loss of a federal contract or federal funding.
The DOL’s guidance answers key several questions about how the MRTA’s amendments to Section 201D will impact the workplace, and what steps employers can take to discipline employees found to engage in marijuana use. The guidance specifically does not address the issues relating to medical use of cannabis.
- An employer can take action against an employee if the employee is “impaired” by cannabis while working, meaning the employee manifests specific articulable symptoms of impairment that (1) decrease or lessen the performance of such employee, or (2) interfere with an employer’s obligation to provide a safe worksite as provided in occupational health and safety laws.
- Articulable symptoms are defined as observable indications that the employee’s performance of duties is lessened or decreased. However, observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Thus, simply detecting cannabis odor standing alone is an insufficient predicate for disciplinary action.
- Employers can prohibit cannabis use at the workplace (or in a company vehicle) during work hours or on-call hours, including meal and break times, even where an employee otherwise leaves the worksite during “work hours”.
- But, an employer cannot prohibit remote employees from using cannabis while working from home since the DOL does not consider a private residence as a “worksite”. However, an employee exhibiting the above-defined articulable symptoms of impairment can be disciplined.
- Section 201-D does not apply to remote employees working out-of-state.
- Employers cannot prohibit the use of cannabis outside of the workplace absent the limitations of Subsection 4-a discussed above. Similarly, employers cannot ask their employees to waive the protections of Section 201-D nor keep the existing cannabis use prohibitions in place.
- Lastly, employers cannot test their employees for cannabis use unless otherwise authorized to do so under Subsection 4-a or other applicable laws, e.g., mandatory testing for drivers of commercial motor vehicles under 49 CFR Part 382.
- Employers should review and amend discipline policies which discipline employees who use legal cannabis recreationally outside of work hours, absent separate state or federal authority to do so.
- Employers should review their existing workplace policies such as drug-free workplace policies, attire and grooming standards, and safety policies, among others, to reflect the protections for recreational cannabis use pursuant to Section 201-D.
- Employers should train managers and HR staff on recognizing, reporting, and documenting articulable symptoms of impairment and remember that cannabis odor alone is not a sufficient basis for discipline. Further, employers should be aware that the defined articulable signs of impairment due to cannabis use may also be an indication that an employee has a disability protected by federal and state law, which could give rise to a duty to engage in an interactive dialogue and potentially offer reasonable accommodations.
- Lastly, the guidance specifically did not address medicinal cannabis use. Employers who are considering taking adverse action against an employee in connection with his or her use of medicinal cannabis use, or need guidance on offering accommodations to medical cannabis users,should consult with an employment attorney.
As always, Woltz & Folkinshteyn, P.C. welcomes your questions about this and any other employment concerns that you may have.