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08 Dec

December 2021: New York Mid-Month Legal HR Updates

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New York Department of Labor Releases Guidance on Cannabis Drug Testing for Most Employees

Update Applicable to:
All employers in the State of New York.

What happened?
On October 8, 2021, the New York State Department of Labor (NYDOL) issued new guidance and FAQs reflecting employment protections provided to cannabis users under the Marijuana Regulation and Taxation Act (MRTA), which was signed into law on March 31, 2021.

What are the details?

Effective March 31, 2021, the MRTA does not prohibit drug testing for cannabis. Within the guidance, however, the NYDOL confirms that New York employers may not test applicants or employees for cannabis unless one of the below limited exceptions apply:

  • An employer is required to conduct such testing by state or federal law. The FAQs clearly state that an employer is not permitted to conduct cannabis drug testing simply because it is allowed or not prohibited under federal law.  Such testing can only be undertaken when there is an affirmative obligation under state or federal law for the employer to test the applicant or employee (for example, in the case of a Department of Transportation regulated position)
  • The employer would otherwise be in violation of federal law or would lose a federal contract or federal funding; or
  • 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 or interfere with the employer’s obligation to provide a safe and healthy workplace. Importantly, the FAQs state that a cannabis drug test cannot serve as a basis for an employer’s conclusion that an employee was impaired due to cannabis use.

For more information, please see the links below:


Marijuana Regulation and Taxation Act

New York Department of Labor’s Guidance and FAQs

Article

What do employers need to do?
Employers should review the links above and review their substance-free workplace policies and drug testing policies to ensure compliance with the guidance.


New York Expands Employee Whistleblower Protections

Update Applicable to:
All employers in the state of New York.

What happened?
On October 28, 2021, Governor Hochul signed Senate Bill S4394A (SB S4394A) into law, which amends section 740 of the New York Labor Law (NYLL) by broadening protections for whistleblowing employees.

What are the details?
Effective on January 26, 2022, Section 740 prohibits retaliatory action by employers against an employee who engages in any activity related to exposing an employer’s violation(s) of law or regulation.

The amendments also expand the definition of “employee” under Section 740 to include former employees as well as independent contractors.

The current law protects only those employees who report violations of law that create or present a substantial and specific danger to public health and safety.  Under the amended statute, employees will be protected if they disclose or threaten to disclose to a supervisor or public body an activity, policy, or practice that the employee “reasonably believes:”

  • violates any law, rule, or regulation; or
  • poses a substantial and specific danger to public health and safety.

For more information, please see the links below:

Senate Bill S4394A

Section 740

Article 1Article 2Article 3

What do employers need to do?
Employers should review the links provided above, consider revising managerial training for handling retaliation claims, and review internal complaint procedures to ensure compliance with these upcoming amendments. 

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