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February 4, 2020

Adult-Use Cannabis and the Workplace: Time to Revisit Employment and Drug-Testing Policies

In 2019, New York State witnessed the first serious attempt by the Cuomo administration to enact comprehensive cannabis legislation, including lawful adult-use cannabis––aka, recreational marijuana. The proposed legislation contained various employment-related provisions that would have seriously restricted employers’ ability to terminate employees allegedly under the influence of recreational marijuana while at work. The legislation also criminalized the “discipline” of an employee if the employer violated the statute. Luckily, the legislation was not enacted, allowing employers to breathe a temporary sigh of relief.

Enter 2020 and version 2.0 of the proposed legislation. If enacted, all NYS employers will need to revisit their employment and drug-testing policies and procedures.

The proposed legislation contains an unlawful discrimination provision, mandates employers to enact specific uniform employment policies, and mandates that only certain specific drug-testing findings can be used as a basis for employee termination.

First, the proposed legislation would enact a discrimination provision to protect employees lawfully using recreational marijuana. Specifically, the legislation indicates that “[n]o person … shall be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including but not limited to … disciplinary action by a business … solely for conduct permitted” by the recreational marijuana legislation. The term “person” would include “employees,” and “discipline” would seemingly include everything from a verbal warning, written warning, and suspension with or without pay to termination.

Second, employers will be allowed to enact workplace conduct rules “prohibiting the use or possession of cannabis” while at work. The policies must be in writing, part of an established workplace policy, and uniformly applied to all employees. The employer must also give prior written notice of those policies to all employees. This will arguably be best accomplished by requiring employees to execute a written acknowledgment indicating they have received, read, and understood the policy requirements.

The proposed legislation also requires employer policies to specifically comply with the NYS Recreational Activities Law (NYS Labor Law § 201-d). The salient part of this statute prohibits employers from discriminating against employees because of their lawful use of consumable products. For instance, under the NYS Recreational Activities Law, an employer could not enact the following workplace rules:

  1. Employees may never consume alcohol.
  2. Employees may never smoke tobacco.

However, the law would allow the following more limited policies:

  1. Employees may not consume alcohol during work hours.
  2. Employees may not smoke while inside the workplace.

By specifically tying the proposed legislation to the NYS Recreational Activities Law, it follows that an employer may not enact a workplace rule that states that employees may never consume marijuana. However, a more narrowly tailored rule noting that employees may not use marijuana during work hours may be acceptable. The key will be for employers to specifically tailor narrow employment policies so as not to run afoul with the proposed legislation. Please note that the legislation does not permit employees “to undertake any task under the influence of cannabis when doing so would constitute negligence or professional malpractice; jeopardize workplace safety; or to operate, navigate, or be in actual physical control of any motor vehicle or other transports vehicle, aircraft, motorboat, machinery or equipment, or firearms while under the influence of cannabis.”

Finally, assuming the employer enacts lawful employment policies, the proposed legislation allows them to take “disciplinary or adverse employment action against an employee, including termination of employment …” for violating the employment policies. In addition, for employers who conduct drug testing, there are additional requirements imposed which employers must comply with. Specifically, drug testing must be administered in accordance with applicable state and local law, and the drug test must demonstrate the employee was impaired by or under the influence of cannabis while in the workplace or while performing work.

As to the second requirement, the typical problem associated with a drug test is that it only shows past use. The proposed legislation specifically addresses this point by indicating that a positive test for cannabis metabolites “shall not be construed as proof that an employee is under the influence of or impaired by cannabis.” However, if the drug test specifically yields positive results for certain active cannabinoids found in cannabis that cause impairment, it will be a sufficient basis for an employer to establish the employee was under the influence of cannabis while at work.

Employers are going to have to pay specific attention to employment and drug-testing policies to ensure they comply with the proposed legislation. In addition, employers are strongly encouraged to train managers on reasonable suspicion documentation to properly document employee conduct if they are suspected of being impaired. Finally, managers must also be trained on allowable inquires under the Americans With Disabilities Act and NYS Human Rights Law. Only a comprehensive approach by employers will ensure compliance with the new legislation.

If you have any questions regarding the content of this alert, please contact Michael Sciotti, partner, at msciotti@barclaydamon.com or another member of the firm’s cannabis team.

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