By Adam R. YoungRobert T. Szyba, Robert S. Whitman, and  Craig B. Simonsen

Seyfarth Synopsis: The New York Department of Labor published “Frequently Asked Questions” which address occupational cannabis issues under the adult-use cannabis and the Marijuana Regulation and Taxation Act (MRTA).

New York State has legalized medical and recreational marijuana, and the NYDOL’s FAQs provide additional insights into how the agency will interpret the statutory protections and employer obligations.

One key take away from the FAQs is that the NYDOL takes the position that drug testing for marijuana (i.e., THC) is generally prohibited, unless such testing is specifically required by federal or other state law, such as with commercial motor vehicle drivers. In effect, employers cannot test and cannot rely on testing as proof of impairment. According to the NYDOL, “such tests do not currently demonstrate impairment,” meaning that current testing technology is insufficient to establish impairment without more information. This prohibition does not appear in the statute, and we anticipate confusion among employers because drug testing programs adopt a legal presumption of impairment based on test positivity. Further, new technologies may increase the accuracy of testing and its correlation with identifiable impairment at the time of the test, which may undermine NYDOL’s rationale.

The FAQs indicate that an “employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working,” only if the employee manifests specific articulable symptoms of impairment that (1) decrease or lessen the performance of their duties or tasks, or (2) 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. In effect, the FAQs suggest that an employee can be physiologically impaired at work and not face discipline or discharge, so long as the employee does not “manifest specific articulable symptoms” and the employer does not have a written policy in place prohibiting impairment.

An employer can have a written policy prohibiting impairment at work, and can take disciplinary action for violation of that policy. If there is no such policy, however, the employer cannot take action unless the employee’s job performance suffers or there is some safety risk. So, employers seeking to create an impairment-free workplace should ensure that they maintain a written policy.

As we have previously blogged, the National Safety Council advises that employers adopt a zero tolerance policy for marijuana use in safety-sensitive positions. The NYDOL’s FAQs draw into question employers’ ability to enforce reasonable safety rules relating to marijuana use and impairment, particularly for positions that implicate the safety of employees. On the other hand, the FAQs highlight the need for employers to have written policies prohibiting workplace impairment to protect safety and comply with the law.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Cannabis Law Practice Teams.