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Being Blunt: The Impact of Legalized Marijuana in the Workplace

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Being Blunt: The Impact of Legalized Marijuana in the Workplace

The program will cover the amendments by the Marijuana Regulation and Taxation Act (“MRTA”) to the New York Labor Law. Specifically, the program will discuss how the amendments impact employment policies such as hiring, firing, discipline, and drug screening, and pitfalls that employers may fall into in light of the new legislation. The program will also discuss open and unresolved questions by the law and how to carefully navigate around the unresolved questions. Additionally, the program will discuss what types of policies employers can set and what to include or exclude when preparing these policies. Additionally, the program will discuss what could be on the horizon with respect to further clarification from New York and possible litigation.

Transcript

- [Taylor] All right. Hi everyone. My name is Taylor Ferris and I'm here with Aaron Solomon. We are from the firm Kaufman Dolowich and Voluck in Long Island, New York, and we are going to be talking about the legalization of marijuana in New York and the impact in the workplace. To give you a brief overview, what we'll be talking about is, you know, discrimination and retaliation, generally. You know, what statutes that we have in place, federally, in New York State and in New York City. We will also talk about cannabis on a federal level and a state level. Then we'll get into the nitty gritty of New York's Marijuana Regulation and Taxation Act and the subsequent guidance. Then after that, we'll talk about the policies that employers can and cannot make and enforce, how this impacts employment policies and employment decisions, some of the pitfalls that employers may fall into, and ones that we've actually seen play out. And we'll also discuss open and unresolved questions that have been left open by the law. So to start, I'll pass it off to Aaron for discrimination. - [Aaron] So there are two levels of statutes, generally, you have that deal with discrimination. You have federal statutes and state and local statutes. On the federal level, you have Title VII of the Civil Rights Act of 1964, or Title VII for short. You have the Age Discrimination and Employment Act, which is the ADEA, the Americans with Disabilities Act, the ADA, the Equal Pay Act, and the Genetic Information Non-Discrimination Act. These statutes set up certain protected characteristics under federal law that some examples are race, color, religion, sex, sexual orientation is included in sex, national orientation, age, disability, and genetic predisposition. New York law also sets a another level of characteristics, and there's certain state statutes that we're gonna talk about. The primary one is the New York State Human Rights Law. This law applies to all employers, regardless of size. And there are also other local laws that may apply. For example, the New York City Human Rights Law has its own strata of, you know, discrimination prohibitions. There's also the New York Labor Law, typically, that deals with wage and hour regulations. And, and this isn't the most important thing for today, there's a provision that prohibits discrimination against the engagement in certain activities. Under state law, you know, there's certain protected characteristics that are broader than federal law. So you see here the list, and there's some similarity, but there's some difference. Military status, domestic violence victim status, arrest or conviction record, political activities, union activities, and recreational use of marijuana. Now, those last things, the last three things are, you know, dealt with in the labor law and we will discuss the specific provisions that deal with that. - [Taylor] Under the federal, state, and city law, retaliation is also prohibited. What that means is that employees cannot be subjected to adverse employment action, which includes being fired, disciplined, or just treated, you know, differently based on what's called protected activity. Now, when we look at protected activity, we're looking at if the employee made a complaint of an incident of harassment or discrimination or other retaliation. With this, you know, the employee provides information or otherwise would assist in an investigation of a complaint. But you don't wanna discriminate, I'm sorry, retaliate against an individual who does provide information to an employer when there is an ongoing investigation or a complaint that has been made. When we have, you know, employees that have made complaints or have engaged in protected activity, you want to make sure that they're not being treated differently. So, for purposes of this CLE, you know, we'll talk about somebody making complaints about maybe the use of, not being able to use medical marijuana or something to that effect, or asking for an accommodation. So we also have to be mindful of retaliation, not just discrimination in the workplace. Moving on to cannabis on a federal level, in the United States, under federal law, we have the Controlled Substances Act, or the CSA. This establishes a schedule for controlled substances. It's one through five. Schedule I is the highest potential for abuse. Typically, there's no currently accepted medical use and there is a lack of accepted safety for use of the drug or other substance. Under the CSA, you cannot manufacture, distribute, dispense, or possess any Schedule I controlled substances. Currently, cannabis remains a Schedule I controlled substance. Now, it's our understanding that President Biden is considering the reclassification of marijuana. But as we sit here today doing this CLE, it is still a Schedule I. There are very limited approved uses or medicinal uses because marijuana is illegal under federal law and it remains a Schedule I drug. It's limited what you can use medical marijuana for. Additionally, one thing to keep in mind is that any federal acknowledgement of the efficacy of cannabis or marijuana to treat medical issues is inherently inconsistent with Schedule I, with the Schedule I designation, because as we just saw in the previous slide, there's no approved medical use, which is why when I said it, I said typically, but, you know, we see some approved medical uses for marijuana. Moving on to the state level, now, this is a CLE where we'll be focusing mostly on New York State. However, we are happy to share that the states that have statutes on marijuana, there are three categories that we see. Complete prohibition, illegal in all respects. No medical use and no recreational use. Some states it's mixed where there's no recreational use, but there are medical programs that allow for the medical use of marijuana. And then there's also states that have made marijuana legal for recreational adult use. So anyone over 18. Now, as you see in this slide, we say that there are 19 states and Washington D.C. that have legalized recreational marijuana in some capacity. However, since creating these slides, and very recently, another state has actually approved the use of recreational marijuana. That's Missouri. So now it's 20 states. Previously they had the medical marijuana program, but now they are, they've voted to legalize it for recreational use. We also have 37 states and Washington D.C. that have legalized medical marijuana. - [Aaron] So, turning to cannabis in New York, the first step, it was in 2014 when medical use was legalized under the Compassionate Care Act. Initially, New Yorkers with qualifying medical conditions could obtain medical marijuana. Now, those conditions were pretty, relatively limited. It certainly wasn't like California. So, for example, cancer, positive status for HIV, atrophic lateral sclerosis, Parkinson's disease, multiple sclerosis, damage to the nervous system of the spinal cord with objective neurologically indication of intractable specificity, epilepsy, inflammatory bowel disease, neuropathology, and Huntington's disease. Now, in addition to all of those things, you needed to have something else. So, and in addition to those symptoms, you need to have any of the following conditions whereas clinically associated with, or a complication of any of those above conditions under their treatment, such as cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe and persistent muscle spasms. So you need to have two levels. It wasn't just having the condition. You also needed to have a specific symptom associated with the condition. And if you had both, you were able to get marijuana from medical issue. Now, the health department did have the authority to add additional conditions to the list and those specific qualifications under the act that required you to speak with your treating physician. And the physician had to determine whether or not it was appropriate for you to obtain medical marijuana. They had to register you with the Department of State's Medical Marijuana Health Program, and they may issue you a certification for a medical marijuana card for what's, for lack of a better term. So, I mean, the initial step was limited. And in addition, you know, when things changed, that was with the MRTA and that was with, passed on March 31st of 2021. It's the Marijuana Regulation and Taxation Act. This act, and we're gonna talk a lot about it, legalized recreational marijuana for adults 21 years of age or older. But what it also did was greatly expand the Medical Cannabis Program I just talked about. So it is no longer limited to those specific narrow, like specific narrow conditions with specific symptoms. So the MRTA has been in works for years. There were several attempts to like legalize marijuana, address the issues in the act. They, you know, various versions of that bill were in the assembly, either passed or then failed in the Senate. Over the years, they just did different attempts. On March 31st, 2021, there was an agreeable legislation that was passed and was signed by former Governor Cuomo. That act took effect immediately and it legalized, obviously, like I said, it legalized recreational marijuana for adults 21 years or older. The question though is where did it deal with that in the statute? Now, we talked a little bit about the labor law addressing outside of work activities. That's Section 201 slash D of the labor law, sorry, hyphen D of the labor law. And in that section, it addresses certain, discrimination against certain outside activities, such as union-related activities, politically-related activities, and now, and now, you know, legal use of cannabis. Cannabis, also the law covers all public and private employers in New York State regardless of size, industry, or occupation. Obviously there's a conflict between federal and state law to the extent that there are, you know, legalization under state law. And, you know, it's still illegal under the Controlled Substances Act. You see that conflict across the country, no matter which state has enacted marijuana legally, either medically or both recreationally or medically. So the MRTA basically says the law is not intended to limit the authority of employers to act and enforce policies pertaining to cannabis use in the workplace. Well, that's pretty obvious, I would think. Or it's not entitled to exempt anyone or any employer from the requirement of federal law or pose any obstacle to the federal enforcement of federal law. It kind of gets into the supremacy clause, right? So let's go into 201-d, right? As we have said, it prohibits discrimination against the engagement of certain activities outside of work, political activities, membership in a union. So it makes it unlawful to discriminate or retaliate against employees who engage in these things. Now, marijuana. And should an employer take adverse action against an employee in violation of 201-d, you know, their employee has a private cause of action and specific damages. Now, with respect to the actual amendment of 201-d, addressing marijuana use, it basically, and you can see it on the slide, made it unlawful for an employer to discriminate against an employee for use of marijuana outside of work hours, off the employer's premise, and off the employer's premises, and without the use of the employer's equipment and other property. So you can't do it during work, right? And you gotta do it off the premises. And you certainly can't do it when you're using the employer's premises or property. So it doesn't matter if you're outside of work hours and you're still hanging out in the parking lot, you still cannot use marijuana there. So there are exemptions to 201-d with respect to an employer's ability to take action in respect to an employee's use of marijuana. For example, if the employer's actions against an employee were required by state or federal statute, regulation, or ordinance, that would give them a license. If the employee was impaired by the use of cannabis, but we'll talk about that more. That would give the employer license to take action. And in addition, the employer has license to take action if that would, if not doing so would basically put the employer of violation of federal law or would result in the loss of a federal contract or federal funding. So when we get into the last part, dealing with federal law, there's certain, obviously, occupations that are regulated by the federal government. So, for example, employees whose positions require CDL license, long-haul trucking and pilots, for example. Clearly, you know, there are employer, the employer has the ability to take action if those employees are subject to marijuana use or use it. We went back into, and we or discussed earlier, the, an employer can take action if the employee is impaired by the use of cannabis. And that's dealt with in 201-d , "Under the MRTA, "impaired means that the employee manifests "specific symptoms while working "that decreases or lessens the employee's performance "of duties or tasks of their job position "or such specific symptoms that interfere "with an employer's obligation "to provide a safe and healthy workplace "that is free from recognized hazards "as required by state and federal occupation safety "and health law." I mean, that's pretty obvious, right? So, you know, if an employee can use marijuana outside of work, that that might be fine. But if an employee, if the employee's use of marijuana outside of work affects their performance during work, I mean, that's gonna create an issue, especially if they're creating a danger. The question to get into is what is a symptom? What counts, right? The act, MRTA, doesn't really define it, right? In October of 2021, there was guidance from the Department of Labor in New York State that basically said, "There is no dispositive and complete list of symptoms," so that wasn't really helpful. But if we look at, you know, specific symptoms that could deal with marijuana use, it could be something like euphoria, sense of relaxation, heightened sensory perception, laughter, altered or distorted perception of time, increased appetite, increased heart rate, anxiety, fear, distrust, panic, impaired motor skills/coordination, slowed reaction time, slowed ability to make decisions, lowered inhibitions, headaches, dry mouth and dry eyes, lightheadedness, dizziness, fatigue, and so on. Now, all those symptoms might be related to marijuana use, but they can very well likely be related to something else such as a disability. So an employer has to be very careful, and Taylor will get into it more when we talk about disability, whether or not an employer walks into a disability discrimination claim because they took action against an employee whose symptoms were not necessarily associated with marijuana, but we're associated with something else. Now, and again, we talked about unsafe workplaces. So for example, if somebody is operating heavy machinery in a reckless way, I mean, that can be an indication of marijuana use. That's something certainly an employer can look into. So we're gonna turn into impact on employers and Taylor's gonna, I'm gonna hand it off to Taylor for disability discrimination-related issues. - [Taylor] So with the enactment of the MRTA and amending the New York Labor law, this obviously is going to have an impact on employers. You know, as we've already gone over, an employer cannot discriminate against an employee based on their recreational use of marijuana off premises. Because of the changes to the MRTA, this is going to impact how employers draft and actually enact and use their policies. It's going to impact the way that employers hire, fire, discipline, and how they accommodate or don't accommodate certain requests as a result of a disability. So to start, we'll go into the disability discrimination-related issues. Now, we talked earlier about employment discrimination a little bit for, you know, to get a little bit into the disability stuff. You know, the discrimination is you can't base decisions on anything on other than the individual's qualifications. If you're going to apply different standards to employees based upon what's called the protected characteristics, that's what Aaron had gone through earlier, the age, disability, sex, sexual orientation, those characteristics, that could constitute discrimination. Also, going back to the retaliation, you know, against others for complaints of discrimination or harassment. Employment discrimination also can be found where there's a failure to reasonably accommodate a request as a result of a disability. When we're talking about disability, we have the federal Americans with Disabilities Act. Employees are protected when they, there's, when they have a disability, and they can claim disability discrimination if they've been denied the reasonable accommodation, which I had just touched on. A reasonable accommodation is an accommodation that allows an employee with a disability to perform their job duties, provided that the accommodation does not cause an undue hardship to the employer. Now, the word reasonable is very important here because something to consider is just because it is a, it is asked for, it does not mean that the employer has to provide it. It has to be reasonable, it has to make sense. Because federal law still bans all marijuana use, the ADA does not require employers to accommodate medical marijuana use or recreational use. But it is important to note that there can be coverage for certain employees under the ADA as a result of recovering from addictions. The employers in New York also have the New York State and the city laws, if they're located in the city, to keep in mind because those also require that employers provide reasonable accommodations. So in states or municipalities where employers may be required to accommodate medical or recreational marijuana use, employers in industries subject to federal regulation may be able to demonstrate that accommodating the use is an undue hardship. You don't get that same leeway under the state and city. Under New York State and City, it is unlawful for employers to discriminate against an individual because of a list of characteristics including disability. They also cannot retaliate against individuals for filing a complaint, opposing unlawful practice, assisting in an investigation or other proceeding. The New York State Human Rights Law defines disability as, "A physical, mental, "or medical impairment that prevents exercise "of a normal bodily function, "or is demonstrable by medically accepted "clinical or laboratory diagnostic techniques, "or if there's a record of such impairment, "or if the condition is regarded by others "as such an impairment." Now, this is pretty broad, but as with most of New York State and New York City laws, the city is actually more broad in their definition. New York City Human Rights Law defines disability as, "Any physical, medical, or mental or psychological "impairment or history or record of such impairment." Now, when we're talking about the city, the impairment is an impairment of any system of the body. And as you can see from this slide, there is a lot of systems here, neurological, special sense organs, respiratory, and then there's also a mental or psychological impairment. Now, Aaron had touched upon changes to the New York Medical Cannabis Program earlier. As he said, initially there were only certain medical conditions for which practitioners could recommend medical marijuana. The MRTA now allows practitioners to have discretion to recommend medical marijuana for any condition. That's very broad now. That means that, you know, it's any reason that the doctor sees fit, they can now prescribe medical marijuana. Now, with the accommodations for a disability for which an employee is prescribed medical marijuana, being a certified medical marijuana patient is deemed having a disability. That's, you know, that's it. But that does not bar the enforcement of a policy employing an employee from performing his or her duties while impaired by a controlled substance. So while it is a disability, again, we are, we're looking at the reasonable standard for accommodations. Employers do not have to provide an accommodation just because it was requested. And the, you know, employers can have these policies in place where you still, there's could be other accommodations, but you don't have to allow employees to be impaired while working. You know, an employer only has to provide an accommodation that allows a person with a disability who is qualified for the job to perform essential functions of that job without imposing the undue hardship. So again, that's looking at the reasonable standard. When an employee requests an accommodation for a disability, and this is across the board, not just when we're talking about prescribed medical marijuana, employers must engage in an interactive dialogue with the employee. So that is having an open conversation with the employee about what accommodations they need to be able to perform their job. And, you know, the first request, or some of the requests may not be reasonable. It may not make sense for the employer financially, it may be too much for them, or it's something that simply cannot be done. There are circumstances where, you know, maybe the requests that they're making for, let's say they can't lift, and this is not, again, medical marijuana-related, but if they can't lift more than 10 pounds, but their job requires them to, no matter what, lift 20 to 30 pounds, there is no reasonable accommodation for that. So you want to have that back and forth as an employer with your employee. With respect to policies, a lot of employers have policies already in place about, you know, illicit drug use and, you know, drug-free, alcohol-free environments. They can, employers can still have those policies, they should have those policies, but they now should be updated to ensure that with respect to marijuana usage, that employees are not working while impaired under the use of marijuana. If an employee is asking for an accommodation to use medical marijuana, then that's, again, going back to the interactive process, that's when the dialogue should happen. But having that policy in place, even for, you know, a request like this would be very important. Employers are also allowed to request that New York State verifies that the employee that's requesting the accommodation is a certified medical marijuana patient. Just like when there's other accommodations, employers can request certain information, you know, a doctor's note, maybe not getting into what the disability itself is, but at least saying this is what an employee can and cannot do. Similarly, the MRTA allows employers to request verification for the employee. And in the materials that are provided, there is hypothetical number two on page 18, it goes through this sort of scenario. And if we have time at the end, we may go through those hypotheticals, but it plays out this sort of scenario if anyone is interested. - [Aaron] All right, so now we're getting into something tricky and something we get a lot of calls about with respect to this, and that's drug testing. So, you know, different states have different laws regarding drug testing. And I'm gonna start probably a pre-MRTA and in New York, unless there was some specific law, statute, regulation that required drug testing of an employee, there generally wasn't much prohibition. So, for example, if in your a law, you're in a law firm like us, the law didn't require us to drug test. It doesn't. You know, or at least until the, and it didn't have any restrictions on the drug test. Now, there are certain things you had to watch out for, right? You had to watch out for disparate impact and disparate treatment. So for example, are you drug testing somebody who is of a certain protected class and treating somebody differently who's not? Does your drug testing policy have a disparate impact even though it's facially neutral on one protected class over another? And those things get into specific issues. It doesn't really matter whether the drug testing is random or just generally, you know, at a specific, you know, at a specific targeting of a specific person due to specific things. That was always what you were worried about was discrimination. It's still the same here, even though the MRTA does impose certain restrictions on drug testing so. Now New York City along had this bill called the Fair Chance Act. We call that ban the box. What it basically did was it, amongst other things, prohibited employers for putting on an application, generally, that says, "Have you been convicted of a crime?" Right? At least on that initial application. There was a subsequent way to deal with that post-offer, but I don't need to get that far into it. But with respect to cannabis, the New York City's Fair Chance Act prohibits employers from requiring job applicants to submit to pre-employment drug testing for cannabis, THC, the active ingredient in marijuana, as a condition of employment. So, you know, an employer can drug test for other things in the city, but not this, right? Now, the MRTA does not prohibit, technically, drug testing of prospective employees, including for marijuana. But there's very little, you know, there may not be very little point and here's why. Under the MRTA, you can't make an employment decision, i.e. to hire, based upon recreational marijuana use, which could be revealed by a positive drug test. Okay. So then you get into the issue of what are you doing and why? Well, we'll talk more about that. Now, there are specific times when employers cannot drug test. Now, when we talk about specific articulable symptoms, the mere fact that somebody tests positive for marijuana, it's not good enough to fire them, right? So, you know, again, the symptoms you're looking at are, again, where they're required by, the exemptions you're looking at are whether it required by federal or state statute, would the employer's actions, if they don't do anything, violate federal law or result in the loss of federal funding. And again, the marijuana, the marijuana use can be at the basis of an action if an employee is impaired. And we talked a lot about impairment. But again, like I just said, you know, the drug test itself cannot serve as a basis for an employer's conclusion that an employee was impaired by the use of cannabis. Why? Well, that's easy. You know, the current types of drug tests we have now will tell you if you smoked marijuana at some point, but they can't really tell you if the employees smoked marijuana that day on that job. They could be, they smoked marijuana two weeks ago at a Phish concert and then they come to work and test positive. Well, guess what? I mean, the law on some level is correct in saying you cannot take action against an employee for that. But if there's another symptom and a positive test, that might be a different situation. But then you still might run into the issues that Taylor discussed of a potential disability-related concern. Now, employment decision, employment drug screenings, and everything I'm talking about deals with cannabis. So if you pretest employment, you can do it for everything else. And if somebody has meth in their system and you don't wanna hire them, I mean, that's fine, right? So that's okay. But the the practical tip, you know, if we're gonna make the decision that you don't want to test for marijuana pre-hire because, you know, there may not be any point, because you can't decide not to hire an employee based upon a positive marijuana test alone, you would then tell the testing company to screen for everything else but not marijuana. That avoids a potential problem. If you fail to hire an employee and the employee, you know, can't really then argue that, gee, the employer did it because I smoked weed when you didn't look for weed, right? So, I mean, that is a practical tip. Now, a bunch of companies have caught on to this, right? And some companies have said like I'm saying, what's the point? So in 2021, Amazon thought about this and it said it would no longer include marijuana in its drug testing panel for positions that are not regulated by the DOT. Okay, so the DOT, long-haul truckers, right? They're still gonna get tested, right? That is a federal requirement that the MRTA is pretty explicit. Like, you know, you cannot ignore federal law, okay? So they still do that, right? But you know, when we found or Amazon figured out that there was a shortage of drivers for local, like you see those Amazon trucks driving by your neighborhood in the, you know, basically in the Sprinter vans, they looked at that and said, "Gee, you know, "that's not a DOT regulated position. "We're not gonna screen for that pre-hire." And it basically encouraged all of its delivery partners, because their delivery partners can be local, independently contracted businesses, to revisit those policies, too. So when we talk about what Amazon did, you know, removing the pre-screening is an commendable step forward. Because what we have seen, and the reason why, and we'll get into it, due to the passage of the MRTA is marijuana use has affected certain populations differently. So in New York, we had something called the Rockefeller Law. And under the Rockefeller Law, you know, there were different very harsh penalties for the possession and sale of drugs, but you saw some weird differences. For example, if somebody possessed cocaine, right, of a certain amount, they would have less of a penalty under the law then if they possessed crack cocaine. And clearly, you know, what we found was there's a certain population, you know, in a protected class way, that dealt more with crack cocaine than cocaine. And so when the MRTA was passed, it was part of the reason was to try to, you know, deal with respect to marijuana to address those differences. But okay, there are some unresolved questions with respect to what Amazon's doing. And though we have a lot of, you know, positive and commendable and attitude towards Amazon, so that there's still concerns about a threat to the public safety about somebody who may not be driving a CDL, but, you know, it's a Sprinter van that's still a big vehicle, right? So if he crashes and tests positive for marijuana, who is liable from an insurance standpoint? Is it the driver, the delivery partner? Is it Amazon? I mean, I don't know. These are coverage issues that need to get worked out. - [Taylor] So, and we've touched a little bit upon this, but really, what can employers do? Employers in New York can and should enact workplace policies. A lot of employers in New York already have drug-free and alcohol-free workplace policies. Such policies typically provide that the company maintains a drug-free workplace, and that employees are prohibited from being under the influence of controlled substances or illegal drugs on the employer's premises or while on company business. Now, employers can keep these policies and they should because nothing in the MRTA or the New York Labor Law, as amended, prohibits an employer from enacting and enforcing these policies. However, one thing to keep in mind is a lot of these policies, when we're talking about drugs and drug use, they use language such as illicit or illegal drugs. Under the MRTA, you know, marijuana may not be covered under that anymore. So employers really should look at their policies and make sure that they have explicit policies prohibiting the use of marijuana on the premises, or while working for employers that have, and all employers should have anti-retaliation policies. It should also be made clear in those policies that employees will not be, you know, retaliated against or discriminated against for recreational use. Employees can also, or employers can also prohibit the employees from working under the influence. Now where this gets tricky is when we're talking about these policies, employees get lunch breaks. Technically, they're not working at the time that they take these lunch breaks. However, from what we know about the use of marijuana, you use that marijuana during your lunch break, a half hour, when you return to work, you will very likely be under the influence of marijuana. So the MRTA does allow employers to prohibit the use of marijuana on an employee's lunch break. It's still considered work hours, even if the employee leaves the premises. So employers can and should have policies prohibiting the use of marijuana during breaks or lunch breaks. Employers can also restrict the use of marijuana when an employee is on call, but off duty. Meaning that if an employee is, it's really their time, but they could be called at any moment to have to work, maybe like a superintendent, an employer can prohibit such use. With this prohibition, it's not just marijuana flower, it also can, you know, employers can prohibit edibles during work hours and in the workplace. Employers can also set policies prohibiting the possession of marijuana on the premises. That can be the marijuana flower, that can be edibles, but they can prohibit employees from bringing marijuana onto their premises. They can also prohibit the transfer without compensation on the employer premises. Now, with workplace functions, similar to how an employer can set alcohol-free policies where employers are not allowed to be intoxicated on the job, but they do the same and they do the same for marijuana and prohibit, you know, them being impaired by cannabis use, what about workplace functions? What about, you know, an offsite event to, you know, say thank you to your employees for working really hard? We see that play out actually in hypothetical number three in the written materials. That's on page 19. You know that can be prohibited. Now, if there is an instance where your employer is providing alcohol, and now even though it's an alcohol-free environment, at this function, the employer is providing it, then there is, then the employees can partake. However, that doesn't mean that just because the employer is providing alcohol that now employees can have and use cannabis during this workplace function. Although that does get a little bit tricky. Again, an employer can prohibit that. Now, when we're talking about terminations and disciplinary action, employers can discipline or terminate employees for performing employment duties while impaired by marijuana. Remember, the MRTA only prohibits discrimination based on adult recreational use off-premises, not while working. So if the employer believes that the employee is under the influence of marijuana while working, yes, they, the employer can absolutely terminate them. We have here in our written materials, our, one of our hypotheticals where we actually, we see this play out as well, where an employee is operating heavy machinery including forklifts, conveyor belts, and the employee is acting reckless or irresponsible and it's creating a dangerous environment. Now, we've actually had these instances happen in real life. We've had our clients call us and, you know, say, "We think that they're "under the influence of marijuana. "This is what they're doing and it's egregious conduct "and should we test?" Now as a practical tip, it may not make sense to test, to run that drug screening. If the employee is doing something reckless or even, you know, something a little less egregious, but it's not performing their job duties up to the standard, you know, then the employer should just take action based on the performance. We don't want to necessarily run into some issues with the New York Labor Law. Now, of course, when we're talking about these types of disciplinary actions or termination, going back to the discrimination, we want to make sure that we are not, you know, employers are not picking and choosing who they do actually terminate for such conduct. We don't want a disparate treatment action coming up. So some, oh, I'm sorry. - [Aaron] So we'll look at some important considerations that employers need to be mindful of. And one thing Taylor just mentioned that's really important is in termination is the reason why, setting up a legitimate business reason that the point is in a retaliation case, which you know, this would follow, is the traditional structure is that there's protected activity, the use of, you know, marijuana offsite and outside of work hours, the adverse action, which in the last example was a termination and a causal connection between the two. And then, you know, the burden will shift the employer to, really a burden of proof, it's a burden of production to say, "Why, why'd you do what you did?" Right? And then the employee has to prove it was pretense. "No, no, that, that doesn't, isn't what happened. "It was really marijuana use, that's not, you know, "what the employer is saying is not the real reason." So, you know, to the extent that, you know, performance is the issue, again, you bolster it, you create that paper trail, you create that documentation to then support the reasons why you did what you did. It's exactly what Taylor's point was. And I'm reiterating it because it's extremely important, right? Now with respect to what else you need to be mindful of is, you know, what's off duty and what's on call? Taylor talks about on call. So I'm gonna talk a little bit more about premises, right? So in COVID-19, obviously, everybody started working remotely. You're working from home, you're not in the office, in a lot of places they're still that way, some places are not. But when somebody is at home working, right, that is not an employer's work site. It's pretty obvious that that's their home, right? So then the analysis turns into whether or not the employee was smoking or under the influence during work hours, right? Because now the premise is outta the analysis. So it's during work hours or whether or not they were on call, right? So that's important. Now, again, what constitutes impaired and how that will be tested or evaluated. Like you have this long list of symptoms that could be marijuana or anything else like laughing, maybe somebody's just funny. So you need to really be careful about that because you don't wanna back your way into another kind of claim such as disability discrimination. Possession while on company grounds, that's important. What counts as company grounds? If in a company rents out space, is that company grounds? If they go to a park and have an event, is that company grounds? You know, is the parking lot outside company grounds if they don't rent it, right? Or if it's not specifically belonging to the company. I mean there are a lot of thorny issues there, which have not been worked out because this is too new. And again, you get into medical use versus recreational use. Now that the definition of medical condition under the Compassionate Use Act has been so broad and even almost matches, you know, legal recreational use entirely, you know, you get into a function there, you know, and whether or not somebody has a symptom or doesn't. So that's another important consideration. Now, you know, more important considerations is, again, like let's think about the odor of marijuana. Like this has always been a thing. Like a cop pulls you over, your car smells like weed and then he wants to do a search of it. It's a, the basic standard, you know, pattern of events. But that specific thing, if it happens in the workplace, it's not good enough. It's not good enough. You can't just fire somebody 'cause there's an odor of marijuana. You need to have a symptom. We could, going back to symptoms, because symptoms are the specific and most important thing. Now also if this is about people who are 21 or older, right? So if somebody is under the age of 21, then the MRTA doesn't apply to them, right? It just doesn't. And if they're independent contractors, volunteers, students, and individuals working out of familial obligations, like your son working for your business, right, the MRTA doesn't apply. Personnel policies, very important, right? You should strongly and specifically adhere to the state's mandated practices regarding privacy, discrimination, and wrongful termination. You should clearly delineate medical marijuana or marijuana itself detailing what's acceptable and unacceptable. And like I said before, when you're worried about disparate treatment or disparate impact, you need to have consistent enforcement because if you don't, you're either treating people, two people, differently or you're treating everybody differently even though you're trying to treat everybody the same, right? So, you know, in terms of like this issue, you know, when plaintiff's lawyers look at policies, they're looking for policies that are, that say something inconsistent with the law, right? Because that can reflect something that the employer's doing, you know, that is not legal, right? So the employer, if the has the policy written the wrong way, it may show in a plaintiff's argument that the employer's not complying with the law. So that's very important. More best practices. All right, obviously marijuana is still illegal at the federal level. We'll see what Biden does, but you know, the laws are still changing. Case law is changing. So employers need to stay in front of it. Obviously, evaluate your current policies and practices, including job descriptions, make sure they're current. Yeah, update them like the third bullet point says, to change in accordance with what's going on, right? What are the changes in privacy, equal employment, off-duty, off-premises, health and safety. Zero tolerance, that's important, right? For, you know, drug use on the workplace or during work time. You want to train managers and supervisors on policy enforcement. Make sure they, you know, document things sufficiently. Make sure that they apply these policies consistently. Make sure they know to ask for help when they need to. And not to fly it alone, because that can create liability. You need to communicate in policies to employees very specific 'cause they need to know, right? And that's important when it comes to mitigating liability. They need to know. And that gives them less of a chance to say, "Oh gee, my employer didn't really tell me," right? So you can have trainings, you can, you know, just make sure you have acknowledgements of receipts of handbooks or if you update the policy and you just do kind of a writer, you know, make sure that there's an acknowledgement that they read it and understood it. And more importantly, keep it in a personnel file. The last point is very important. I know some of you may or may not practice in this area, and you may have clients who are businesses who are gonna confront this. I would say, you know, don't go it alone, right? If you don't think you can advise it to this issue, call somebody you know who can or who can give you help, who can give you input. I'm sure they'll all be happy to and they'll provide the expertise and advice and input that you would need. - [Taylor] So, you know, with any new law and even some longstanding laws, there are, you know, unresolved questions. There's issues, potential effects from the MRTA. Starting with medical marijuana and accommodations. So since the MRTA expanded New York's Medical Cannabis Program, medical marijuana is significantly more accessible for individuals with a broad range of conditions or disability. You know, again, employers should anticipate an increase in requests for accommodations by medical marijuana patients because of this expansion. Again, it's now for any reason. It doesn't have to be, you know, specific, specific conditions. Employers should also anticipate an increase in disability discrimination-related claims for failure to accommodate by medical marijuana patients. So again, employers should remember that simply because it is asked does not mean that the employer has to provide it. Employers have to provide reasonable accommodations, not whatever the employee wants. Which you run into some issues because employees may want and see only one certain accommodation. But that's why engaging in that interactive dialogue with the employee is very important. Also, remember that employers can ask New York State to confirm or verify that the employee is a medical marijuana recipient. Now, one of the other things that, you know, employers should remember is very recently, I think it was last month, New York launched their legal market for recreational marijuana. I believe New York approved 36 businesses and nonprofits for licenses to operate the first retail dispensaries in New York. So get ready to see not just an increase in individuals obtaining medical marijuana licenses, but just generally being able to have more access to marijuana. The MRTA, unfortunately, there is a lack of guidance. As Aaron has said multiple times, we really don't have a definition of these specific articulable symptoms. The last guidance that we received was from October, 2021. And as Aaron pointed out, it doesn't give us an exhaustive list or, you know, a real definition. There's a few examples on the guidance, but it's simply not enough. So what that does is it leaves employers, you know, shooting in the dark. They're guessing. Again, as Aaron also pointed out, there's a confusion of marijuana impairment symptoms and symptoms of a disability. In the written materials, there actually is a very long list of some of the symptoms of marijuana use that can be applied to a slew of medical conditions. The other issue we run into or employers run into is, you know, who can employers ask when trying to determine if an employee is, their behavior is supports a finding for these specific articulable symptoms. I know in New Jersey, they were trying to set up trainings to have employers have an assigned person to be able to kind of determine what these symptoms are. But we don't have any sort of guidance here for that. Again, employers are shooting in the dark. There's also no guidance or exception for religious organizations. You know, there are religious groups out there that prohibit the use of mind-altering drugs. So in the employment context, you know, what can this religious organization do and not do? There's also no guidance or exceptions for businesses that handle highly sensitive information. For example, medical practices. They have a ton of very, very confidential, private information so you would expect that there would be some guidance on that. But unfortunately, the MRTA and the subsequent guidance do not provide any clarity on that for employers. And as Aaron touched on earlier, there's also safety concerns. There's now an inability to screen employees for dangerous or hazardous positions for marijuana. And that causes concern for some employers. I mentioned earlier that there is a, it's hypothetical number one, where we're talking about heavy machinery. That's on page 17. We've had these calls come in, forklift operators, conveyor belts, delivery drivers. There are concerns that there are individuals that may be under the impairment or impaired by marijuana and now they're putting others in danger. So in a circumstance like that, as I also mentioned earlier, you know, if somebody is, if an employee is operating heavy machinery, a car, doing something dangerous or reckless, sure, could an employer screen them for marijuana? Yes. But again, practically, it may not make sense. It you're probably better off just terminating the employee for their conduct. Again, you have to consistently apply these policies, but it may not make sense in a lot of these circumstances to screen for marijuana. And then, you know, Aaron also touched on the liability issues. If there's an impaired employee that's endangering or harming another employee or the public, that runs into an issue with insurance and liability. - [Aaron] So I just want to end it, and I don't mean to be scary, but I want to end it in the point of liability. I mean, as I said before, an employee can bring a private right of action and so can the Department of Labor at some of the remedies that exist for an employee. For example, if they're fired, would be front pay, back pay. So economic damages. You know, there's a question under the New York Labor Law, whether emotional distress is available. Some cases, a decent amount of cases, say it is. And the question then becomes whether or not we call garden variety emotional distress. Did they treat? Or more severe emotional distress where there is treatment. And that greatly affects the value at verdict. And in addition, you have to consider that there are attorneys fees and costs. So when you get into these cases, it can be a very, very expensive endeavor. In addition, I shouldn't say in addition again, but on top of all that, with all the uncertainty regarding what is a symptom and what isn't, I mean, in my mind, and absent any case law to guide it, you know, I would think that summary judgment might be difficult in some of these cases because, you know, you get into an issue of fact as to what is objectively a symptom versus not, reasonably objectively a symptom. And those are, you know, words that plaintiff's lawyers love because you know what's reasonable is to the reasonable person. So then a judge has to look at, obviously, that the plaintiff's evidence and the like most favorable. And you know, I, you know, I would think until I see something different that could create a whole lot of problems for employers. And that's why I would leave everybody, again, with the understanding just, you know, if, you know, if your clients have this come up, you know, and you need to seek input from somebody who does this, then you should do it and you should do it promptly but while before the client has to take action. This is not the kind of thing you wanna sleep on. So I guess we'll leave everybody with that. Taylor and I want to thank you all very much for your attendance and your time and we hope you have learned something today. And again, thank you. - [Taylor] And if anybody has any questions or wants to reach out for any clarification on any of these points, our emails are on the slides and in the written materials and our emails are always open. So, thank you.

Presenter(s)

AS
Aaron Solomon
Partner
Kaufman Dolowich Voluck, LLP
TF
Taylor Ferris
Attorney
Kaufman Dolowich Voluck, LLP

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