Drug Testing Employees Becomes a Thing of the Past

PHOTO CREDIT: pexels.com
by Michael Nocella

New York may not be the first state to legalize adult-use cannabis, but it is the first state to provide guidance that prohibits employers from drug testing employees and applicants for THC. To find out more about how the law protects employees, we turned to HR Consultant Jennifer Connor at Paychex. She provided answers to our questions about new Labor Law Section 201-D, the difference between on-site and at-home use, and why “articulable signs of impairment” in the workplace are difficult to prove.

When cannabis was legalized for recreational use in New York, the state also changed its labor laws, right?

Yes. New York amended NYS Labor Law Section 201-D, “Discrimination against the Engagement in Certain Activities.” Specifically, it includes cannabis as a “legal consumable product” and as a “legal recreational activity.” The law restricts employers from discriminating against employees for

  • involvement in off-duty activities;
  • the legal use of consumable products;
  • legal recreational activities, and
  • union membership.

Only the legal use of cannabis by adults 21 and over is protected.

I have worked with clients in the past who didn’t want to hire people who used nicotine, but that would be illegal. Nicotine is a legal consumable product and now marijuana is, too.

To be perfectly clear, here’s what the law states: “An employer cannot refuse to hire or employ, discharge from employment, or otherwise discriminate against an employee for the legal use of cannabis. Unless regulated by industry (such as Department of Transportation), an employer cannot have a policy that prohibits an employee from using outside of the workplace, nor can they require an employee to promise or agree to not use cannabis as a condition of employment.”

Are they allowed to frown upon the use of it by their employees?

No. An employer may not agree with what an employee does outside of work time and off of work property, but employers have to separate their own personal beliefs from the employer/employee relationship, or they could get themselves in trouble.

This is the time of the Great Resignation and it’s difficult for employers to attract, retain, and engage employees. It’s especially true with younger generations. According to research by Paychex and Future Workplace, more than one-third of Gen-Z and Millennial workers are actively looking for a new job. Employers will likely want to remain neutral on workers’ legal activities outside of work so as not to risk creating a divisive work culture and potentially losing employees to competitors.

But employees can’t use cannabis on the job, right? Does that include employees working remotely?

An employer can prohibit employees from using during work hours – which also includes meal or break periods, and when an employee is on call. An employer can also prohibit employees from bringing and possessing it on work property (desks, lockers, etc.) and in work vehicles.

Remote workers will still fall under a general policy prohibiting use during work hours, but the Department of Labor does not consider an employee’s private residence as a “worksite,” per Labor Law Section 201-D. As a result, an employer cannot take action against an employee who works from home if they are in possession of cannabis.

An employer can take action against employees – remote or onsite – if they exhibit “articulable signs of impairment” due to marijuana during work hours. And, the employer must provide “objectively observable” evidence that the employee’s job performance – or overall workplace safety – is negatively impacted by marijuana use.

What are the signs?

There is no complete list that an employer can refer to that details all symptoms of impairment and, as the law’s FAQs state, “Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment.” So, if an employee smells like marijuana when they come to work, it is not enough evidence to indicate that they came to work under the influence. That case, specifically, is addressed in the FAQs. The employee could have a roommate who uses so it is NOT evidence of articulable symptoms of impairment.

I’ve consulted with clients who wanted to terminate an employee because they smelled like alcohol. Smell or odor does not indicate that an employee is coming to work under the influence.

Work performance is the key; something I’ve advised clients to examine in the past. 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.

Accusations are extremely hard to prove. The employer should work with legal counsel to determine if they have enough objective evidence. This can also be tricky because an employer may think they are observing symptoms of impairment, but they instead are symptoms of a disability protected by federal and state law and unknown to the employer.

Are there some cases in which employers have to take action?

According to Section 201-D and its new subsection 4-a, employers can take action or prohibit employee conduct for the following reasons.

  • If state or federal statute, regulation, or ordinance, or other state or federal governmental mandate required them to do so;
  • If they would be in violation of federal law;
  • If they would lose a federal contract or federal funding;
  • If the employee manifests those “specific articulable symptoms” of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties; or 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.

If a case is proved, what are the consequences?

Employers can use disciplinary action up to and including termination.

Based on your experience, is cannabis use causing a greater problem in the workplace today?

I can tell you that the amount of questions I have been receiving from clients in regards to employees possessing/using marijuana and/or marijuana products while on company time and/or property has dramatically decreased in the last two years. That could be caused by a number of factors: more employees working remotely, an overall decrease of people actively in the workforce, or employers having to navigate the ever-changing guidance/laws in regard to COVID-19.

Is there a difference between the laws governing alcohol use in the workplace and cannabis use in the workplace?

As to how an employer should approach their drug and alcohol policy, there really isn’t much of a difference. Most policies are all-encompassing. For example, “Being under the influence of alcohol, illegal drugs (as classified under federal, state, or local laws), or other impairing substances while on the job may pose a serious health and safety risk to others and will not be tolerated.” That being said, I don’t think we will see many company-sponsored holiday parties and summer picnics that serve both alcohol AND cannabis any time soon.

What cannabis-and-the-workplace questions do you think New York State still needs to address?

Fortunately, the state provided strong guidance in the “Adult Use Cannabis and the Workplace” fact sheet. However, I do think employers may struggle with what is considered reasonable suspicion and symptoms of impairment. A good rule of thumb for an employer is to objectively look at the overall work performance of the employee before making an accusation.

Employers should consult with legal counsel when determining “reasonable suspicion.” In addition, employers (unless required by industry) with a drug testing policy should review their policies now to remove any wording or practice that includes cannabis testing.

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