The New York State Department of Labor (NYSDOL) has published guidance regarding employee cannabis use.  We previously reported on the amendments to New York’s off-duty conduct law—New York Labor Law Section 201-D—which now prohibits employers from discriminating against employees because of their legal cannabis use.  As discussed further below, the NYSDOL’s recent guidance provides some answers, but also raises additional questions and issues that employers should consider when coming into compliance. 

The Guidance Provides Some Additional Information on the NYSDOL’s Interpretation of “Impairment.”

While NYLL § 201-D prohibits employers from disciplining an employee because he or she uses cannabis while off-duty, it does not prohibit an employer from disciplining an employee who is “impaired by the use of cannabis” at work.  The statute defines impairment to mean that the employee manifests specific articulable symptoms of impairment that either: (i) decrease or lessen the performance of their duties or tasks; or (ii) 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. 

The guidance is unclear on what these “specific articulable symptoms” might actually look like, settling instead upon general statements.  Specifically, the NYSDOL notes that there is “no dispositive and complete list of symptoms of impairment,” and any such symptoms must be “objectively observable indications that the employee’s performance of the duties of the position . . . are decreased or lessened” (emphasis added).  The NYSDOL does offer one example regarding impairment: the unsafe and reckless operation of heavy machinery (though that essentially states the obvious).  However, the NYSDOL guidance does offer some examples of what would not constitute “impairment,” including (i) observable signs of use that do not indicate impairment on their own; or (ii) noticeable odor on its own.  Further, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by cannabis.

In addressing what articulable symptoms of impairment may look like, the NYSDOL also cautions employers that some objectively observable indications could be mistaken for indications that an employee has a disability protected by applicable law.  The guidance does not expand upon how employers should distinguish disabilities from articulable symptoms of impairment, adding another layer of complexity to an employer’s efforts to ascertain what constitutes articulable symptoms that may give rise to discipline.  

In that same vein, the guidance offers little on what might constitute employee interference with an employer’s obligation to provide a safe and healthy workplace “as required by state and federal occupational safety and health laws”—the second ground that could give rise to employee discipline.  Here, many employers had hoped the NYSDOL would identify the types of roles or job duties it considers “safety sensitive” or at least identify other safety-related scenarios (beyond the aforementioned heavy machinery operation scenario), but it declined to do so.

The Guidance Clarifies an Employer’s Ability to Discipline Based on Use and Possession at the Worksite.

Although significant portions of the NYSDOL guidance highlight actions that employers cannot take, the guidance makes clear that employers may prohibit the use and possession of cannabis during work hours or while at work.  This prohibition extends to time spent on unpaid breaks, meal periods (including where the employee leaves the worksite), while using company vehicles, and while on-call. 

As part of this guidance, the NYSDOL also addresses cannabis use in the remote workplace or, in other words, where used by employees at their residence.  Specifically, the guidance explains that while an employee’s residence is not a “worksite” for purposes of NYLL § 201-D, employers may still discipline an employee who, while working remotely in New York State, during work hours, exhibits specific articulable symptoms of impairment that decrease or lessen performance. 

The NYSDOL also confirms that employers may prohibit an employee’s possession of cannabis at work, including at a leased and rented space, in company vehicles, and in areas used by employees within such property (e.g., lockers, desks, etc.).

The Guidance Confirms the Circumstances under Which Employers May Drug Test for Cannabis.

The guidance establishes that except in a narrow set of circumstances where an employer is required by law to test for cannabis, an employer “cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law.”  These narrow circumstances, according to the guidance, exist where “federal or state law requires drug testing or makes it a mandatory requirement of the position,” such as for drivers of commercial motor vehicles.  By contrast, where federal law merely permits or does not prohibit drug testing, employers may not drug test for cannabis use. 

The Guidance Also Clarifies the Reach of the Law.

The guidance confirms that NYLL § 201-D does not apply to employees working “remotely in another state,” and instead applies only to “employees employed within the State of New York.”  The guidance also confirms that the law does not apply to “individuals who are not employees,” such as non-employee students, independent contractors, or volunteers.  Employees under the age of 21 are also not covered, as the law only permits cannabis use by individuals 21 and over.  Relatedly, an employer may not prohibit or regulate an employee’s cannabis use while the employee is on leave except under narrow circumstances. 

Thoughts for Employers and Next Steps

The NYSDOL guidance still leaves some questions unanswered as well as issues for employers to consider.  In particular, employers are mostly left wanting as to what constitutes “articulable symptoms of impairment” to which they may point to discipline an employee.  As discussed above, the NYSDOL noted that there is “no dispositive and complete list of symptoms of impairment.”  Even so, a few illustrative examples would have been helpful, particularly given the notable indicia which are not articulable symptoms of impairment on their own (e.g., bloodshot eyes or odor). Employers will have to see how this concept is developed in future legal proceedings.

Notably, while the guidance explicitly indicates that “observable signs of use” or a “noticeable odor” do not indicate impairment on their own, the guidance is silent on whether such signs taken together could support an impairment determination, or whether an employer may utilize a drug test to confirm its initial determination based on other observable signs of impairment. 

Further, the guidance is silent on whether an employer may rely on the violation of another valid conduct policy to form the basis of disciplinary action.  For example, may the employer take action if the employee conducts a meeting and emits an odor that offends a customer (without attributing that odor to cannabis or something else)? 

Employers are also left wanting as to what types of behavior or symptoms would interfere with an employer’s obligation to provide a safe and healthy workplace.  The NYSDOL declined to expand on this exception beyond referencing the unsafe operation of heavy machinery and thus, employers will need to carefully evaluate when to take disciplinary action under these circumstances. 

Finally, the off-duty conduct law (NYLL § 201-D) also includes an exception allowing discipline where the employee’s off-duty conduct creates a material conflict with the employer’s trade secrets, proprietary information or other proprietary or business interest.  The guidance did not address this exception, although we can envision scenarios where it could apply. 

Given the updated guidance, employers should continue with their compliance efforts, including:

• Reviewing existing relevant policies to determine whether and to what extent modifications are needed, including modifications to drug-free workplace policies (especially drug-testing policies) in light of the NYSDOL’s guidance on that issue. 

• Training supervisors and managers to ensure the proper implementation of new or revised conduct policies and expectations regarding a safe workplace as well as use and possession of cannabis in the workplace.

• Considering the law’s impact on any collective bargaining agreement, including with respect to drug testing and unionized safety-sensitive positions.

• Assessing the roles which the employer considers “safety sensitive.”  Despite the lack of guidance from the NYSDOL on which positions are considered “safety sensitive,” employers should still attempt to assess which positions fit into this category (thus identifying the group for whom they may take action when exhibiting signs of impairment that interfere with the creation of a healthy and safe workplace).

• Clearly communicating the employer’s expectations to employees regarding drug use and possession in the workplace, including by communicating who it considers occupying a safety-sensitive role and by providing guidelines around impairment.