Adult use cannabis and the workplace

New York Labor Law 201-D

This document is 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”). This document does not address the medical use of cannabis. For further assistance with New York Labor Law and the MRTA, please visit New York State’s Office of Cannabis Management’s website at cannabis.ny.gov or consult with an appropriate professional.

DISCRIMINATION PROHIBITED

The MRTA amended Section 201-D of the New York Labor Law to clarify that cannabis used in accordance with New York State law is a legal consumable product. As such, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.

PERMITTED EMPLOYER ACTIONS

The MRTA amended New York Labor Law Section 201- D by adding a new subsection 4-a, which provides that 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

FREQUENTLY ASKED QUESTIONS:

HUMAN RESOURCES ISSUES / ACTION AGAINST EMPLOYEES

Is illegal cannabis use protected?

Only the legal use of cannabis by adults over the age of 21 under New York State law is protected. The illegal use, sale, or transportation of cannabis is not protected by Section 201-D of the Labor Law. For more information on what is now considered legal use, please visit New York State’s Office of Cannabis Management’s website at cannabis.ny.gov or consult with an appropriate professional.

Can an employer take action against an employee for using cannabis on the job?

An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that:

  • Decrease or lessen the performance of their duties or tasks
  • 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

What are articulable symptoms of impairment?

There is no dispositive and complete list of symptoms of impairment. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of the position of their position are decreased or lessened. Employers are cautioned that such articulable symptoms may also be an indication that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer. Employers should consult with appropriate professionals regarding applicable local, state, and federal laws that prohibit disability discrimination.

For example, the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.

What cannot be cited by an employer as articulable symptoms of impairment?

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. However, employers are not prohibited from disciplinary action against employees who are using cannabis during work hours or using employer property.

Can employers use drug testing as a basis for an articulable symptom of impairment?

No, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment. (For more information, see section Drug Testing below).

Can I fire an employee for having a noticeable odor of cannabis?

The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-D.

Do I have to fire an employee for using cannabis on the job or for cannabis impairment on the job?

No, employers are permitted to take action under such circumstances but are not required to do so.

Do I have to discipline, report, or fire an employee under age 21 who uses cannabis on the job?

No, there is no legal requirement to do so in the Labor Law.

Are employers required to hire an employee back who was previously terminated for now legal cannabis use or a related expunged crime?

No, the law does not require employers to rehire former employees who were terminated due to cannabis use prior to the legalization of cannabis.

What if my employee works remotely in another state that uses different laws?

The MRTA and New York Labor Law Section 201-D only apply to employees employed within the State of New York.

Can a person use cannabis if they are on leave?

For purposes of the labor law, employers cannot prohibit the use of cannabis while employees are on leave unless the employer is permitted to do so pursuant to the provisions of New York Labor Law Section 201-D(4-a).

USE AT WORK OR DURING WORK HOURS

Can employers prohibit use of cannabis during meal or break periods?

Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. Such periods of time are still considered “work hours” if the employee leaves the worksite.

Can employers prohibit use of cannabis during periods in which an employee is on-call?

Yes, employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work.”

Can employers prohibit cannabis possession at work?

Yes, 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.).

For remote employees, can employers prohibit use in the “worksite”?

The Department of Labor does not consider an employee’s private residence being used for remote work a “worksite” within the meaning of Labor Law Section 201- D. However, an employer may take action if an employee is exhibiting articulable symptoms of impairment during work hours as described above and may institute a general policy prohibiting use during working hours.

Can employers prohibit use when the employee uses a company vehicle?

Yes, employers are permitted to prohibit use in company vehicles or on the employer’s property, even after regular business hours or work shifts.

WORKPLACE POLICIES

Can employers prohibit the use of cannabis outside of the workplace?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a).

Can employers require that employees promise or agree not to use cannabis as a condition of employment?

No, employers are not permitted to require employees to waive their rights under Section 201-D of the Labor Law as a condition of hire or continued employment.

Are existing policies prohibiting use permitted?

No, unless an exception applies. Employers are encouraged to update or amend such policies to reflect changes to New York State law.

APPLICABILITY

Are both public and private employees covered by the MRTA and New York Labor Law Section 201-D?

Yes, they apply to all public (state and local government) and private employers in New York State, regardless of size, industry, or occupation.

Which employees aren’t covered by the MRTA and New York Labor Law Section 201-D?

The MRTA and New York Labor Law Section 201-D do not apply to individuals who are not employees (e.g., students who are not employees, independent contractors, individuals working out of familial obligation, volunteers) or provide any consumer protections. Employees under the age of 21 are also not covered, as cannabis use by individuals under the age of 21 is prohibited by New York Law and not subject to the present protections.

Do the MRTA and New York Labor Law Section 201-D depend on immigration or citizenship status?

No, the MRTA and New York Labor Law Section 201- D apply to all employees regardless of immigration or citizenship status.

Do the MRTA and New York Labor Law Section 201-D apply to students?

Yes, the MRTA and New York Labor Law Section 201-D apply to all employees, regardless of their educational status. However, students who are not “employees” are not covered by this law.

DRUG TESTING OF EMPLOYEES

Can an employer test for cannabis?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.

Can an employer drug test an employee if federal law allows for drug testing?

No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. (See e.g., USDOL TEIN 15-90 explaining that neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorizes drug testing of employees.) However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position. (See e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)

1 The federal government, as an employer, is not covered by this law.

Reposted from NY Department of Labor

Over 10 million served

We are very excited and proud to announce.

Today we published the first-ever analysis of industry-specific data from more than ten million urine drug test results performed by Quest Diagnostics. USA Today covered this story as an exclusive in its Money Section with an interactive chart for featuring 3 years of Quest Diagnostics data. Below are some links and resources about the news release. This reinforces our thought leadership position in our industry, the value of insights provided by our laboratories, and our strong brand.

A special shout out to the data team for their amazing efforts: Dr. Barry Sample, Ashlyn Hazard, Priscilla Ku, Tito Gutierrez, and Aaron Atkinson and the greater DTI team of Kim Gorode (Corporate PR), Dr. Kim Samano, and Bonnie Bush.

USA TODAY EXCLUSIVE: Retail workers tested positive for drugs at the highest rate last year, Quest study shows

Webpage with full press release and infographics

Brochure download

Blog – First-ever analysis of industry-specific drug testing data

Key headlines:

  • Drug use by the U.S. workforce increased each year — and by double-digits over two years — between 2015 and 2017, in five of 16 major U.S. industry sectors analyzed
  • Five sectors experienced year-over-year increases with a double-digit increase in their positivity rates between 2015 and 2017: Transportation and Warehousing (21.4%); Other Services (Except Public Administration) (15.4%); Finance and Insurance (13%); Retail Trade (12.8%); and Wholesale Trade (11.8%).
  • Retail heads list of industries with highest overall positivity
  • Cocaine positivity increases 43% in Retail, more than twice the increase of the general U.S. workforceAuthored by Russ Smith, Quest Diagnostics

Authored by Russ Smith of Quest Diagnostics

Colorado high: six years of recreational marijuana

On November 6, 2012, Colorado became the first state to legalize recreational marijuana use for anyone 21 years of age and older. After five years, researchers have compiled a substantial amount of data about the effects of recreational marijuana throughout the state. One example is the financial aspect of legalizing the drug for recreational use. Last year alone, the recreational marijuana industry brought in $1.5 billion in sales according to the Colorado Department of Revenue.

The Rocky Mountain High Intensity Drug Trafficking Area released a report detailing the impact of legalized marijuana in Colorado. The report showed that 15.9% of people were self-reported past-month marijuana users compared to the national average of 8.6%. Increased drug use has impacted traffic accidents and public health in the state. A few other statistics include:

  • People who visited a hospital due to marijuana use increased by 52% from 2012 to 2016.
  • Traffic accidents related to marijuana use jumped from 11.43% in 2013 to 21.3% in 2017.
  • Traffic deaths with drivers who tested positive for marijuana increased by 39% during the past four years, which equates to one person killed every 2 ½ days.

While it may not come as a surprise that people are using marijuana more frequently where recreational use is permitted, the parallels between increased drug use and increased dangerous activities are surprising. In a 2017 Westword poll, 48% of people who used marijuana recreationally reported going to work high and 39% said they went to work high on a weekly basis.

It is important to keep your employees and workplaces safe regardless of state marijuana legislation. Drug testing for marijuana can help to reduce injuries in the workplace, improve productivity, and reduce employee turnover.

For an interactive map with marijuana positivity by zip code, visit DTIDrugMap.com.

-Article authored by Quest Diagnostics.

Drugs and Alcohol in the Workplace

Alcohol and drug use among employees and their family members can be an expensive problem for business and industry, with issues ranging from lost productivity, absenteeism, injuries, fatalities, theft and low employee morale, to an increase in health care, legal liabilities and workers’ compensation costs.

The impact of alcoholism and drug dependence in the workplace often focuses on four major issues:

  • Premature death/fatal accidents
  • Injuries/accident rates
  • Absenteeism/extra sick leave
  • Loss of production

Additional problem areas can include:

  • Tardiness/sleeping on the job
  • After-effects of substance use (hangover, withdrawal) affecting job performance
  • Poor decision making
  • Loss of efficiency
  • Theft
  • Lower morale of co-workers
  • Increased likelihood of having trouble with co-workers/supervisors or tasks
  • Preoccupation with obtaining and using substances while at work, interfering with attention and concentration
  • Illegal activities at work including selling illicit drugs to other employees
  • Higher turnover
  • Training of new employees
  • Disciplinary procedures

In addition, family members living with someone’s alcoholism or drug use may also suffer significant job performance related problems — including absenteeism, lack of focus, increased health-related problems and use of health insurance.

Alcohol Use

Two specific kinds of drinking behavior significantly contribute to the level of work-performance problems: drinking right before or during working hours (including drinking at lunch and at company functions), and heavy drinking the night before that causes hangovers during work the next day.

And it isn’t just alcoholics who can generate problems in the workplace. Research has shown that the majority of alcohol-related work-performance problems are associated with nondependent drinkers who may occasionally drink too much — not exclusively by alcohol-dependent employees.

While alcoholism can affect any industry and any organization, big or small, workplace alcoholism is especially prevalent in these particular industries:

  • Food service
  • Construction
  • Mining and Drilling
  • Excavation
  • Installation, maintenance and repair

Prescription Drugs

There is always a level of risk when using any drug including prescription or over-the-counter medications.

Drug reactions vary from person to person. If you are taking a drug you haven’t had before, you won’t know how it will affect you. It’s important to follow your doctor’s advice when taking prescription drugs and discuss any side-effects and how this might impact on your work.

The effects of prescription drugs such as benzodiazepines (e.g. Xanax®) can have an impact on your work and you should discuss these with your doctor. Long term use in particular may become problematic.

What can the workplace do?

Work can be an important and effective place to address alcoholism and other drug issues by establishing or promoting programs focused on improving health. Many individuals and families face a host of difficulties closely associated with problem drinking and drug use, and these problems quite often spill over into the workplace. By encouraging and supporting treatment, employers can dramatically assist in reducing the negative impact of alcoholism and addiction in the workplace, while reducing their costs.

Without question, establishment of an Employee Assistance Program (EAP) is the most effective way to address alcohol and drug problems in the workplace. EAPs deal with all kinds of problems and provide short-term counseling, assessment, and referral of employees with alcohol and drug abuse problems, emotional and mental health problems, marital and family problems, financial problems, dependent care concerns, and other personal problems that can affect the employee’s work. This service is confidential. These programs are usually staffed by professional counselors and may be operated in-house with agency personnel, under a contract with other agencies or EAP providers, or a combination of the two.. Additionally, employers can address substance use and abuse in their employee population by: implementing drug-free workplace and other written substance abuse policies; offering health benefits that provide comprehensive coverage for substance use disorders, including aftercare and counseling; reducing stigma in the workplace; and educating employees about the health and productivity hazards of substance abuse through company wellness programs.

  • Research has demonstrated that alcohol and drug treatment pays for itself in reduced healthcare costs that begin as soon as people begin recovery.
  • Employers with successful EAP’s and DFWP’s report improvements in morale and productivity and decreases in absenteeism, accidents, downtime, turnover, and theft.
  • Employers with longstanding programs also report better health status among employees and family members and decreased use of medical benefits by these same groups.

Some facts about alcohol in the workplace:

  • Workers with alcohol problems were 2.7 times more likely than workers without drinking problems to have injury-related absences.
  • A hospital emergency department study showed that 35 percent of patients with an occupational injury were at-risk drinkers.
  • Breathalyzer tests detected alcohol in 16% of emergency room patients injured at work.
  • Analyses of workplace fatalities showed that at least 11% of the victims had been drinking.
  • Large federal surveys show that 24% of workers report drinking during the workday at least once in the past year.
  • One-fifth of workers and managers across a wide range of industries and company sizes report that a coworker’s on- or off-the-job drinking jeopardized their own productivity and safety.

Some facts about drugs in the workplace:

  • Workers who report having three or more jobs in the previous five years are about twice as likely to be current or past year users of illegal drugs as those who have had two or fewer jobs.
  • 70% of the estimated 14.8 million Americans who use illegal drugs are employed.
  • Marijuana is the most commonly used and abused illegal drug by employees, followed by cocaine, with prescription drug use steadily increasing.

Source: National Institute on Drug Abuse; National Institutes of Health; U.S. Department of Health and Human Services.

New OSHA Accident Reporting Rules Knock Out Most Employer Mandatory Post-Accident Drug Policies

DOT, NRC and CG Mandatory Drug Testing Rules Exempt;
Effective Date of OSHA Rules: August 10, 2016
By Theodore F. Shults JD, MS

First, a good question is: How does a new rule requiring employer electronic reporting of accidents to OSHA end up prohibiting most private employer post-accident drug testing procedures and policies?

Many employer drug-testing policies mandate drug and alcohol testing in the wake of a workplace accident regardless of fault, cause or suspicion that the employee was impaired or was using drugs. These polices vary greatly and can in some situations be viewed as designed to chill an employer’s interest in reporting an on-the-job illness or injury. Some state laws and courts have addressed these issues by defining post-accident testing as requiring reasonable suspicion.

Now OSHA has chimed in with a comprehensive restriction on post-accident testing. Effective August 10, 2016, OSHA’s Final Rule on Electronic Reporting of Workplace Injuries requires employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury.

Regardless of the merit of OSHA’s new restriction on post-accident testing, how does this happen? Well it helps that the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing. It is OSHA’s subsequent May 12, 2016 commentary accompanying the final rules that specifies that OSHA views mandatory post-accident testing as deterring the reporting of workplace safety incidents and that employers who continue to apply such policies will face enforcement scrutiny and serious penalties.

It is not a complete ban, but it might as well be. OSHA instructs employers to:

“limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

So which drug test does OSHA recommend that can accurately identify impairment by drug use (other than a breath alcohol test)? That guidance has not been provided.

Fortunately OSHA has spared mandatory federal and state testing programs.

State Workers’ Compensation Law and Federally Mandated Drug Testing

OSHA points out in its preamble to the final rule that a few commenters raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. To wit OSHA notes:

“This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws. 29 U.S.C. 653(b)(4)”

I suspect that most law firms that provide employment guidance in states with voluntary drug testing rules are trying to figure out whether states with “voluntary drug-free workplace laws” are covered under the exemption of compliance with the state worker compensation law. It is worth noting that if an employer decides not to comply with the post-accident requirement of, for instance, Florida’s Drug-Free Workplace Act, they would lose the workers’ comp discount and legal protections the Act provides.

Fortunately, it is quite clear that compliance with the federal drug testing requirements of the DOT, CG and NRC preempt OSHA’s restriction on post-accident testing

NOTE: It is important to point out that the offending language in this final rule restricting post-accident testing is found in the rule’s preamble and not part of the black letter rule itself. Further, how OSHA will enforce the rule remains an open question, which will be reflected in its as yet unpublished enforcement guidance. Given the significance of this rule and the perfunctory opportunity provided to the industry to comment, as well as the fallout OSHA already is receiving, there is a reasonable chance that it may be rolled back or significantly amended.

Repost by permission from AAMRO, MRO ALERT publication