Changes in the law can often leave employers feeling “dazed and confused,” and New York State’s newly adopted Marihuana Regulation and Taxation Act is no exception. As of March 31, 2021, it is now legal in New York State for individuals 21 and older to use, possess, and transfer (provided it is at no charge) up to 3 ounces of cannabis and 24 grams of cannabis concentrate. So what does this mean for employers? We break down some of the most frequently asked questions below:
1) Can employers prohibit employees from using/possessing marijuana in the workplace?
Yes. Employers can still prohibit employees from recreational use or possession of marijuana in the workplace or during the employee’s work hours, including any breaks.
2) Can employers discipline employees for off-duty/off-premises marijuana use?
No, but with some exceptions. Employers are now generally prohibited from disciplining employees for marijuana use that occurs off-duty and off-premises. There are, however, some exceptions, including:
Employers can continue to take disciplinary action against employees who use marijuana during non-working hours if required by state or federal statute, regulation, ordinance, or other state or federal mandate. For example, truck drivers and other safety-sensitive transportation employees remain subject to federally mandated drug testing and are prohibited from using marijuana at any time.
Employers may also take disciplinary action against employees who use marijuana during non-working hours if permitting such recreational use would cause the employer to violate federal law or cause the employer to lose a federal contract or federal funding. (If you know or think you have federal contracts or funding sources, this may be the perfect time to review to ensure compliance!)
3) What can an employer do if an employee is impaired by marijuana during working hours?
Just because a substance is legal doesn’t mean an employer has to tolerate employees being impaired by that substance while at work. Under the new law, employers may continue to prohibit and take adverse employment action against employees who are impaired by marijuana during working hours.
The meaning of “impaired by marijuana” remains a bit vague, though we’re hoping New York will soon issue some guidance to clear the smoke. What is clear is that an employer can likely take disciplinary action against an employee who poses a safety risk to themselves or others in the workplace due to their marijuana impairment.
4) Can employers drug test employees for marijuana?
The new law does not restrict employers from requiring employees to submit to drug testing. It does, however, limit what employers can do with those test results. Unless one of the exceptions discussed in Q2, above, applies, employers cannot take adverse employment action against employees based on a positive test for marijuana. However, drug tests may still prove valuable in identifying the use of other controlled substances such as cocaine, heroin, etc.
So, what should employers do now? Well, now is a good time to review and update your policies, particularly those relating to drug use. Also, if you are going to take any action against an employee (or prospective employee) for anything related to marijuana use, ensure you reach out to your employment counsel to discuss first. If you have any questions or would like our assistance, drop us a line. We want to help you make sure everything at your organization is “alright, alright, alright.”