For the most part, New York State’s new marijuana guidance for employers means they will no longer be allowed to test employees or job applicants for cannabis, according to new regulations released by the state Department of Labor, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a). 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, such as commercial vehicle drivers.
If an employee is visibly impaired at work or possesses marijuana on the job, an employer would be able to test and penalize the worker. However, if the worker shows up smelling of marijuana, that alone is not grounds to test them.
An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that:
- Decrease or lessen the performance of their duties or tasks
- 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
Of course, there is no dispositive and complete list of symptoms of impairment. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened. Employers are cautioned that such articulable symptoms may also be an indication that an employee has a disability protected.
Employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.
All New York employers should update their policies regarding the new marijuana guidance, but it becomes especially tricky for logistics companies as employees who operate heavy machinery and employees who do not operate heavy machinery will now likely be categorized separately under drug testing policies.