Adult Use Cannabis and The Workplace
Marijuana Industry NewsNew York October 22, 2021 MJ Shareholders 0
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 re ect 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 Tra c 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.
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