December 1, 2021

Weed and the workplace

Employers can no longer test for marijuana

Kevin Conlon/city editor

Tractor-trailers head north Friday on Interstae 81 in Homer. State law has legalized recreational marijuana, but workplaces can still ban impairment and some professions, like interstate truck drivers, must follow federal guidelines that prohibit marijuana use.

Recreational marijuana is legal in New York, but that doesn’t make its use an appropriate workplace activity, so while the state prohibited employers earlier this month from testing employees for cannabis use, bosses can still act against workers who are impaired.

New York state now stops employers from testing employees for cannabis use and discriminating against employees who use cannabis outside of their workplace or their work hours.

But there are exceptions, and employers can still discipline people for being impaired at work.

As employers await further guidance from the state, here’s what you might want to know:

WHERE CAN YOU USE MARIJUANA?

People are legally allowed to consume marijuana in public wherever smoking tobacco is legal, according to state law. Cannabis can be consumed in privacy at home or at a state-licensed on-site consumption site.

However, because cannabis is still illegal under federal law, you can’t use it on federal lands, such as national parks and forests.

While it is legal for adults 21 years or older to consume cannabis, employers can still enforce policies that prohibit impairment on the job, reports the state.

Employers should now consider treating cannabis use similar to alcohol use — do it in your free time, but don’t bring it to work or be intoxicated while on the job, said Bob Haight, president and CEO of the Cortland County Chamber of Commerce.

“It’s a legal product, so it’s perfectly legal for employees to take part in the use of it when they’re not working and they’re off the premises,” Haight said. However, employees should not use cannabis while on their lunch break, because they may still be on the clock or could be impaired during the remainder of their work day. “We can draw very good parallels to alcohol use — we can’t discriminate because an employee wants to have a beer on the weekend or after work.”

Although the stigma around cannabis use might stick with some people, Haight said employers need to keep up to date with the state’s guidelines.

“I want employees to understand that it would be illegal for them to lose their job based on recreational use, as long as they’re not impaired in the workplace,” Haight said. “You’re welcome to talk about it, like you would mention stopping in a local brewery over the weekend — there’s nothing wrong with that.”

CAN EMPLOYERS TEST FOR CANNABIS?

The Marijuana Regulation and Tax Act, which then-Gov. Andrew Cuomo signed March 31, amends the state’s labor laws to prohibit employers from discriminating against, firing or refusing to hire, employ or license people because they used marijuana outside of work or tested positive for marijuana on a drug test.

“New York is the first state to essentially prohibit cannabis testing in all but narrowly defined situations,” reports Quest Diagnostics, a national clinical laboratory that provides employment drug testing.

Esta Bigler, director of Cornell University’s School of Industrial and Labor Relations’ Labor and Employment Law Program, said there is no test for cannabis impairment, and testing positive for the drug no longer matters because the test can’t determine when the drug was used.

Even if the employee smells like cannabis, that still is not evidence of impairment under the new labor law, according to the state Department of Labor.

“We’re going to be learning as we go, but it’s very important to understand that one size doesn’t fit all,” Bigler said.

Until there is a test to determine if someone is impaired by cannabis, employers will need to keep in mind this is a case by case situation.

“It’s vague right now, but I think we will begin to see it play out differently in each workplace depending on the work that’s being done,” Bigler said.

HOW CAN EMPLOYERS TELL, AND WHAT CAN THEY DO?

The Occupational Safety and Health Administration requires employers to provide a workplace free from recognized hazards, including impairing

“We’re responsible through OSHA regulations to maintain a safe work environment, so I think the biggest criteria for employers is to make sure the work environment is safe,” Haight said. “That’s why we care about impairment. If you’re impaired, you might not have the best judgment to make decisions, and you could potentially impact yourself and coworkers.”

The state allows employers to take action against an employee who is impaired while working, specifically symptoms that:

  • Decrease the performance of work duties.
  • Interfere with an employer’s obligation to provide a safe and healthy workplace

The law allows action based on observable signs of impairment, but remember impairment can have many causes.

“I think it’s important for employers to remember it’s about the articulate symptoms, and that someone could be acting differently just because they didn’t sleep well that night or they’re feeling overwhelmed with work,” Bigler said. “The way to ask the question is to focus on the behavior.”

“Employers need to have a unified policy of what they’re looking for, how they’re going to approach if they believe an employee is impaired while on the job,” Bigler said. “An employer needs to treat all employees the same, no matter what their color, their ethnicity, their religion, et cetera.”

DO SOME JOBS REQUIRE MORE SOBRIETY THAN OTHERS?

The state’s only example of an articulable symptom of impairment is operating heavy machines in an unsafe or reckless manner, such as trucks, farm equipment, machinery with moving parts or energy sources.

“If you notice somebody driving your vehicle in an unsafe way, then that would be an example of when you want to check on them,” Bigler said.

When confronting the worker, Bigler recommends employers focus on the unsafe or unusual behavior, rather than asking personal questions or mentioning impairment.

“We cannot forget that cannabis is a controlled Schedule 1 substance under federal law,” Bigler said. “The United States Department of Transportation requires truck drivers to be drug tested, so if you own an interstate trucking company then you must follow the federal law. If you’re a federal contractor or receive federal funding, then you must follow the requirements at the federal level.”

Federal contractors and businesses receiving federal funding are also subject to the federal regulations. And any for-hire driver transporting 10 or more people at a time can be subject to pre-employment drug testing.

Bigler encourages employers to look at their human resources policies and employee manuals, and update as needed.


Other questions

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

Yes, employers may prohibit cannabis during “work hours,” including paid and unpaid breaks and meal periods.

Can employers prohibit use of cannabis when 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, such as lockers or desks.

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.” However, an employer may take action if an employee is exhibiting specific symptoms of impairment during work 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.

Other questions?

Go to tinyurl.com/829mdbdh.

— SOURCE: New York State Department of Labor