The New York State Department of Labor (“NYSDOL”) has published guidance intended to address some of the most common situations or questions in the workplace related to adult-use cannabis and the Marijuana Regulation and Taxation Act (“MRTA”).

As you may recall, under the MRTA, employers may take employment action or prohibit employee conduct where:

• An employer is/was required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate
• The employer would be in violation of federal law
• The employer would lose a federal contract or federal funding
• The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties
• The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws

The recent NYSDOL guidance makes clear that observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited.   According to the guidance, a noticeable odor of cannabis, on its own, is not evidence of an articulable symptom of impairment.

The guidance confirms that employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work.”  In addition, employers may prohibit employees from bringing cannabis onto the employer’s property, including leased and rented space, company vehicles, and areas used by employees within such property (e.g., lockers, desks, etc.).  However, employers cannot test an employee for cannabis unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.

New York employers with drug screening protocols or policies should review their practices in light of this guidance to ensure compliance with the MRTA.  Should you need any assistance, please contact ALG.