NYSDOL’s guidance makes clear that only an employee or applicant’s legal use of cannabis is protected by Section 201-d.
NYSDOL also indicates that the MRTA and amended Section 201-d “only apply to employees employed within the State of New York” and therefore do not protect employees who work remotely in another state that has different laws surrounding cannabis use.
Consistent with the statute, the guidance reiterates that employers can prohibit use of cannabis during “work hours,” which includes “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” .
Further, employers may prohibit employees from using or possessing cannabis at any time they are on the worksite, regardless of whether they are on or off duty.
Employers can also prohibit use or possession of cannabis that involves use of the employer’s property or equipment, including company vehicles.
Employers should revisit their current policies related to drug use to ensure that they are consistent with Section 201-d, as amended.
This means that, according to NYSDOL, an employer cannot require an employee or applicant to undergo a test for cannabis unless: the employee manifests specific articulable symptoms as set forth in the statue.
Section 201-d, as amended by the MRTA, allows employers to take action against an employee who, while working, manifests “specific articulable symptoms” of cannabis impairment that either: interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal occupational safety and health laws.
Further, NYSDOL states that employers cannot require employees to waive their Section 201-d rights as a condition of hire or continued employment.
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