Amended 201-D – Adult Use Cannabis and the Workplace
We are here to continue to provide key information and updates on the drug testing and employment background check industry. By remaining vigilant to changing trends, we are able to provide employers with the best background check services available and ensure you are making the right hiring decisions.
If you’ve been following along, many states around the country including New York State have legalized the recreational use of marijuana. Obviously, this has put a big question mark surrounding employment drug testing at the state level. As we continue to learn and understand the ever-changing landscape of employment drug testing, let’s take a look at what Albany had to say recently about marjuana in the workplace.
Though Albany technically announced that a workplace “Cannot Test” for Marijuana, that is not absolute. There are certainly new grounds to the equation, including the fact that an employee can not be tested in the event that they smell like marijuana. This in the past would probably be considered “reasonable suspicion.”
Can I fire an employee for having a noticeable odor of cannabis?
The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-D
Despite an employee smelling like pot, this is not grounds for a drug test in NYS. In the same vein, there must be “articulable” symptoms of impairment in order to take action. So what does that mean?
Articulable Vs. Dispositive
According to the new update from New York State,
An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that:
• Decrease or lessen the performance of their duties or tasks
• 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
Though the grounds for testing have changed, if an employee is demonstrating Articulable symptoms of impairment, the employer can take action. There is no “dispositive” list of symptoms, but if the employee shows “objectively observable indications that the employees performance has of the duties of the position of their position are decreased or lessened.”
The Marijuana Regulation and Taxation Act (MTRA) Amended NYS Labor Law Section 201-D by adding a new subsection. This provides the info for what permits an employer to take action.
Under the amended section, the NYS document provided by dol.ny.gov demonstrates the grounds for what stipulations are in play for a NYS employer to take action or test for cannabis.
• An employer is/was required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate
• The employer would be in violation of federal law
• The employer would lose a federal contract or federal funding
• The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties
• The employee, while working, 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
Stay tuned to the ESS blog for more updates on NYS and other states as we continue to work through a changing world. If you’d like to learn more about what you should or shouldn’t be doing for your company’s drug testing policy, please reach out! We are always here to help any business with a question about background screening!