4-8-21 NYS Cannabis Legalization: Impact on Employers

On March 31, 2021, Governor Cuomo signed legislation legalizing adult-use cannabis, as well as expanding the State's existing medical marijuana and cannabinoid hemp programs. While the lawful sale and dispensing of cannabis will likely not occur until 2022, the personal possession components of the legislation became immediately effective. Under the new law, individuals may possess up to 3 ounces of cannabis and 24 grams of cannabis concentrate outside the home.

Section 201-d of the Labor Law was likewise amended to protect an employee from job discrimination based on the legal use of cannabis, in accordance with State law. Under the Labor Law, this protection extends to use that is:

• Outside work hours
• Off the employer's premises
• Without use of the employer's equipment or property

While this change is effective immediately, the law does provide for some exceptions. More specifically, employers will not be found to be in violation of Section 201-d when:

1. 1. The employer's actions are required by state or federal statute, regulation, ordinance, or other state or federal government mandate; or
2. 2. An employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, or such specific articulable symptoms interfere with an employer's obligations to provide a safe and healthy workplace, free from recognized hazards, as required by State and Federal occupational safety and health laws; or
3. 3. The employer's actions would require the employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of federal contracts or funding.

Practical Issues for Employers

While there are still many unanswered questions as a result of the new legislation, there are certain immediate steps employers should take to ensure they are in compliance with the Labor Law requirements.

First, it is important to note that employers need not accommodate the use, possession, sale or transfer of cannabis in the workplace. That means that employers who currently have a zero tolerance drug policy prohibiting the possession, sale or transfer of drugs or alcohol in the workplace do not need to amend these policies. However, many employees may not recognize that the workplace exception exists so it is likely a good idea to notify employees that, despite the Governor's legalization of cannabis, employees are not permitted to possess marijuana in the workplace or they will be subject to disciplinary action, including termination. Employers should also review any existing drug testing policies to ensure that they are updated to reflect the employer's current obligations.

Second, absent a state or federal contracting requirement, pre-employment drug testing that tests for marijuana should be immediately discontinued. In the interim, any positive pre-employment drug test results for cannabis should be disregarded.

Third, although the Labor Law references "specific articulable symptoms" which, if manifested by an employee, allow an employer to take action against an employee for otherwise legal marijuana use, the statute does not actually identify such symptoms, nor does it outline a procedure by which employers should consider and document such symptoms. Employers should contact legal counsel to discuss implementation of necessary policies and procedures to ensure that they are minimizing potential liability for breach of the Labor Law.

We expect that the New York State Department of Labor, Division of Safety and Health will issue guidance related to, in particular, application of the exception pertaining to an "employer's obligation to provide a safe and health workplace, free from recognizable hazards". However, in the interim, employers should prioritize the development of appropriate procedures and training for supervisors who oversee safety-sensitive positions.

We will continue to update you as further developments with regard to the legalization of cannabis and its impact on the workplace occur.

For more information contact your Woods Oviatt attorney or Lorisa D. LaRocca, Esq., Chair, Labor & Employment Department at 585-987-2834 or LLarocca@woodsoviatt.com.