New York: Cannabis Dos And Don'ts In The Workplace – State Labor Dept. Lays It All Out

The comings and goings of the New York cannabis industry made headlines many times this past month, but the announcement that attracted the most attention was when the state became the first in the Union to prohibit employers from testing their workers for cannabis, most of them at least. 

A deeper dive into cannabis and the workplace came out recently in the form of a fact sheet released by the Office of Cannabis Management (OCM). The guidance, like the cannabis program itself, was held up for many months by the dilemma then resignation of former Gov. Andrew Cuomo, who signed recreational marijuana into law in March. The program now seems to be moving at a rapid clip under Gov. Kathy Hochul.

So, what are the rules on cannabis in the workplace?

Guidance Highlights 

Among the most important facts from the sheet are the following:

• Employers can’t test their employees for marijuana, unless the employer is permitted to do so under the provisions of Labor Law Section 201-D(4-a) or other applicable laws;
• Only employees are protected from employer action, which means that the testing provision does not apply to individuals who are not employees, such as students, independent contractors individuals, volunteers, etc.

Also, employees under the age of 21 are not covered in that cannabis use is only legal for individuals 21 and older.

• Employers are still allowed to set up some rules, including prohibiting cannabis use during work hours, which includes paid and unpaid breaks, when workers are on-call or are “expected to be engaged in work,” while working remotely. An employer also has the right to forbid employees to bring cannabis into the workplace. 
• Employers are “on their own” when it comes to determining impairment. The new rules allow employers to take any action against a worker who is impaired during working hours if they show “articulable symptoms of impairment.” Unfortunately, the fact sheet does not specify what those symptoms are, recognizing that there is no viable test for or list of impairment symptoms, but rather refers to them as "objectively observable indications that the employee’s performance of the duties of the position of their position are decreased or lessened.”

In addition, the smell of cannabis in the workplace is not proof of articulable symptoms of impairment and neither is a cannabis drug test. 

There’s no doubt that New York cannabis regulators are still figuring out which rules and guidelines are needed to make this complex program function properly. Just last week, the Cannabis Control Board proclaimed marijuana gifting to be illegal. 

Though moving steadily and smartly, New York's legal cannabis program is still in the early stages, as witnessed this week when whole flower cannabis sales just started, which indicates that we can likely expect many more interesting policy updates to transpire in the near future. 

Photo: Courtesy of Luca Bravo on Unsplash