Category: Workforce Trends

New York Law Protects Employee Marijuana Use

New York Law Protects Employee Marijuana Use

On March 31, 2021, New York Governor Andrew Cuomo signed the “Marihuana Regulation and Taxation Act” into law. This action immediately decriminalizes many instances of adult possession and use of cannabis products, including marijuana, statewide. It will eventually lead to the legal sale of marijuana through licensed dispensaries. Among the immediate impacts, now New York law protects employee marijuana use.

Legalization of Adult Recreational Marijuana Use

The extensive Marihuana Regulation and Taxation Act begins a complex process of legalizing the sale of cannabis for adult consumption in New York. Selling marijuana, except as licensed to certified medical marijuana patients, will remain illegal until sometime in 2021. However, New Yorkers aged 21 and up can immediately begin to use marijuana without violating state law.

The New York penal law is immediately amended to expressly declare the following “lawful” for people aged 21 or older:

  • Possessing, displaying, purchasing, obtaining, or transporting up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
  • Transferring, without compensation, to a person 21 years of age or older, up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
  • Using, smoking, ingesting, or consuming cannabis or concentrated cannabis (unless otherwise prohibited by state law).
  • Possessing, using, displaying, purchasing, manufacturing, transporting, or giving to any person 21 years of age or older cannabis paraphernalia or concentrated cannabis paraphernalia.
  • Assisting another person who is 21 years of age or older, or allowing property to be used, in any lawful acts listed above.

There are some restrictions on marijuana use, such as smoking or vaping it in most public places and automobiles.

Protections for Employee Marijuana Use

New York Labor Law has long protected employees’ off-duty conduct, including lawful use of consumable products. For example, employers usually cannot prohibit employees from smoking tobacco or drinking alcohol outside of work. The Marihuana Regulation and Taxation Act amends the existing protections to address employee marijuana use.

Section 201-d of the New York Labor Law now specifically protects an employee from job discrimination based on the “legal use of consumable products, including cannabis in accordance with state law.” The protection extends to use that is all of the following: (a) outside of work hours, (b) off the employer’s premise, and (c) without the use of the employer’s equipment or other property.

“Cannabis” means “all parts of the plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”

Limits on Employee Cannabis Protections

Notwithstanding the new state law, marijuana remains a controlled substance (i.e., illegal drug) under federal law.  And the Legislature seemingly acknowledges that marijuana can have a behavioral impact on individuals who consume it. The New York Marihuana Regulation and Taxation Act attempts to address those realities with potential exceptions to the Labor Law protections for employee cannabis use.

An employer does not violate section 201-d of the Labor Law based on employee cannabis use when:

  • The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal government mandate;
  • The employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligations to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or
  • The employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Unfortunately, these exceptions are relatively vague in light of the situations employers are likely to face. For example, few, if any, other laws expressly prohibit an employer from employing someone who consumes marijuana outside of work. And it is practically difficult to measure whether someone is sufficiently impaired by cannabis while working.

Under the New York medical marijuana law, the federal Drug-Free Workplace Act has been referenced as a potential barrier to some employees using marijuana for medicinal purposes. However, there are still open questions as to that law’s relevance on the subject, including recreational marijuana consumption.

Employer Next Steps

The legalization of marijuana use (with limits) and the protections for employee marijuana use are effective immediately. Accordingly, all New York employers should consider taking the following actions.

Review Drug Use Policy

Do you have a policy that includes marijuana or other cannabis products as prohibited substances? If so, you may want to remove that reference or limit it to workplace use and impairment.

Modify Drug Testing Procedures

Pre-employment drug testing for marijuana is probably now unwise in almost all cases. It may be federally mandated for some categories of employees, such as those in the transportation industry. But, for most workers, a positive marijuana test would only provide employers with information that they should not be using as the basis for hiring decisions.

Drug testing for marijuana during employment will also now be problematic. Because of how long the drug can stay in one’s system, a positive test will often not guarantee workplace use or impairment. Employers will likely need to rely on personal observations to prove these unprotected scenarios.

Train Supervisors

Remember that employers may still discipline employees for using or possessing marijuana at work or working under the influence of cannabis if it negatively affects performance or safety. Employers with concerns about this occurring need to ensure supervisors are both aware of the legal restrictions and understand the visible symptoms that may demonstrate impairment.

Discussion of marijuana use by employees will likely become more prevalent in the workplace with the new legal protections. Employers may choose to restrict this subject in some cases. But, either way, knowledge of employees’ use generally cannot be used against them. Supervisors should avoid inquiring into this subject so that employees otherwise disciplined will not point to this factor as an alleged basis of discrimination.

Stay Informed

We are at the very beginning of understanding what legal recreational use of marijuana will mean for New York workplaces. Additional regulations may be on the way. And we’ll gain a better understanding of how various constituents will handle the employee marijuana use protections over time.

 

To receive future updates on this and other topics of interest to New York employers, sign up for the Horton Law email newsletter and follow us on LinkedIn.

COVID-19 Sick Leave

NYS DOL Proclaims New COVID-19 Sick Leave Mandates

On January 20, 2021, the New York State Department of Labor issued new “guidance” regarding COVID-19 sick leave. The two-page document signed by Commissioner of Labor Roberta Reardon purports to relate to the State’s March 2020 law regarding leave for employees subject to a quarantine or isolation order due to COVID-19. However, the DOL pronouncements seem to create new obligations not found in the law.

NYS COVID-19 Quarantine Leave Law

At the beginning of the coronavirus crisis in March 2020, both New York State and the federal government enacted employee leave laws specific to COVID-19. The federal law expired December 31, 2020 (though employers who continue to allow paid leave as the law provided remain eligible for tax credits). The New York law had no expiration date.

The New York COVID-19 leave law was comparatively limited, essentially only creating an employer-paid leave entitlement when employees were placed under a precautionary or mandatory order of quarantine or isolation due to COVID-19. The law is clear that the order must be from a government health authority, not a private medical provider.

The amount of leave required under the New York COVID-19 sick leave law depends on the employer’s size. The smallest private employers (less than 10 employees and net income under $1 million) do not have to provide paid leave. Mid-sized companies (up to 99 employees) must pay for 5 days of leave due to COVID-19 quarantine or isolation. Large private employers (100+ employees) and all public (governmental) employers must provide up to 14 days of paid leave in this situation.

The law also modified the NYS disability and paid family leave programs to supplement the portion of such leaves that employers did not have to pay for directly.

Click here for more on the New York State COVID-19 sick leave law.

Earlier DOL Guidance

In late March 2020, the NYS DOL issued guidance on the new leave law through a State website. This guidance addressed questions such as how to calculate the rate of pay. It also provided new forms for employees to request paid family leave or liability benefits due to a COVID-19 quarantine.

Click here for more on the original New York State COVID-19 sick leave guidance.

New COVID-19 Sick Leave Guidance

The January 20, 2021 guidance from the NYS Commissioner of Labor is initially notable for its format. Rather than a proposed regulatory document or even website guidance as used back in March, these new COVID-19 sick leave parameters appear in a plain .pdf file bearing a DOL logo heading and ending with Commissioner Reardon’s signature and a New York, New York dateline. Overall, this more closely resembles the approach used by the New York Department of Health to put out temporary standards for COVID-19 safety under Governor Cuomo’s numerous executive orders during the pandemic. However, no executive order has granted the DOL this authority.

The document begins by expressly referencing the March 18, 2020 “legislation authorizing sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.” That legislation grants the Commissioner of Labor “authority to adopt regulations, including emergency regulations, and issue guidance to effectuate any of the” law’s provisions. But, again, this guidance is not in the form of regulations. Even emergency regulations would require more formalities. The law continues that “Employers shall comply with regulations promulgated by the commissioner of labor for this purpose which may include, but is not limited to, standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”

Does the same force apply to a generic “guidance” document? That’s a fair question that could reasonably be answered, “no,” especially since the guidance seems to deviate meaningfully from the terms of the law itself.

Valid or not, the new guidance notes that “All prior guidance remains in effect”. It then includes four numbered paragraphs that seem to address issues that likely have been asked of the DOL about the law.

Return to Work

The DOL confirms that following quarantine or isolation, employees don’t have to be tested for COVID-19 before returning to work. (There is an exception for nursing home staff.) This conclusion seems consistent with the law.

But the guidance goes further to indicate that if an employee does subsequently receive a positive test result, they may not return to work. In that scenario, the employee must continue to isolate. Moreover, the DOL suggests that such an employee will automatically be deemed to be subject to a mandatory order of isolation from the NYS Department of Health and entitled to leave under the NYS COVID-19 sick leave law. This idea of an automatic isolation order appears contrary to the law, which plainly requires the employee to obtain an order from a health department to qualify for leave. The guidance says that, in this situation, the employee only needs to submit documentation from a medical provider or testing facility confirming the positive test result–again, inconsistent with the law.

New Paid Leave Scenario

The DOL also appears to have created an entirely new COVID-19 paid leave requirement not codified in the March 18, 2020 legislation. The guidance document indicates that if an employer requires an employee who is not subject to a quarantine or isolation order to stay home due to exposure or potential exposure to COVID-19, then the employer must pay the employee for all time missed until allowing the employee to return to work or until the employee becomes subject to a quarantine or isolation order. Notably, the DOL doesn’t establish any further exceptions to this new obligation. For example, it doesn’t relieve the employer of the obligation to pay even where an employee recklessly exposed himself to COVID-19.

There is no reasonable way to read this paid leave obligation into the March COVID-19 sick leave law. Nonetheless, employers must either adhere to the DOL’s position or risk having to contest it legally.

Three Strikes and You’re Out

When the New York COVID-19 sick leave law took effect in March 2020, no one anticipated the disease to remain prevalent for as long as it has. There was a general belief that anyone could only become infected once and that a 14-day quarantine or isolation period would eliminate any transmission risk. The way things have worked out, it has unexpectedly become clear that some people may run into multiple quarantines or isolations due to COVID-19. So, how much paid leave do they get?

According to the DOL, employees can qualify for COVID-19 sick leave up to 3 times. And the second and third times only count if based on a positive COVID-19 test.

Right, wrong, or indifferent, the law itself doesn’t say anything about three leave periods or limit any scenario to a positive test. Does the Commissioner of Labor have this much authority to re-write the law? Probably not, but again, who wants to take that risk?

Between a Rock and Hard Place

New York employers are already facing tremendous difficulty applying the array of leave requirements that potentially apply to employees dealing with COVID-19 issues. On the one hand, further guidance from the DOL arguably provides answers to questions companies are facing. On the other hand, it’s highly questionable whether the DOL has the authority to make these pronouncements. Both following and ignoring this latest guidance could create legal problems for employers. Not all of these “interpretations” are in the employees’ favor. So, even doing the right thing according to the DOL could upset an employee who might have a reasonable claim that they were denied rights under the NYS COVID-19 sick leave law.

Perhaps the DOL will clarify its authority, or the State will otherwise confirm the validity of this guidance. For now, however, employers should consult experienced New York employment counsel if confronted by any of the issues addressed by this DOL document.

 

For more legal updates of interest to New York employers, sign up for the Horton Law email newsletter and follow us on LinkedIn.

 

WARN Notice Obligations

COVID-19 Not an Absolute Defense to WARN Notice Obligations

The COVID-19 pandemic led many employers to reduce their workforces suddenly in 2020. Often, large layoffs occurred with little or no advance notice. Consequently, many employees asserted claims under the federal Worker Adjustment and Retraining Act (WARN Act) and/or similar state laws. Though ultimate liability depends on many factors, a recent federal court decision involving the Enterprise car rental company suggests that employers can’t completely avoid WARN notice obligations just because COVID-19 introduced unprecedented business circumstances.

WARN Notice Requirements

The WARN Act requires employers with at least 100 employees to give up to 60 days’ advance notice to employees (or their unions) and various government entities before implementing certain reductions in force. Notice is required in advance of “plant closings” and “mass layoffs.”

A “plant closing” occurs where an employment site (or one or more facilities or operating units within an employment site) will be shut down, and the shutdown will result in an “employment loss” for 50 or more employees during any 30-day period.

A “mass layoff” occurs where there is to be a group reduction in force that does not result from a plant closing, but will result in an employment loss at the employment site during any 30-day period for (a) 500 or more employees, or (b) 50-499 employees if they make up at least 33% of the employer’s active workforce.

The term “employment loss” means (i) an employment termination, other than a discharge for cause, voluntary departure, or retirement, (ii) a layoff exceeding 6 months, or (iii) a reduction in hours of work of individual employees of more than 50% during each month of any 6-month period.

WARN Notice Exceptions

Employers must give the full 60 days’ notice unless a statutory exception applies.

Faltering Company

This limited exception only applies in the case of plant closings, not mass layoffs. To qualify for the faltering company exception, a company must have been actively seeking capital or business that it had a realistic opportunity to obtain with a good faith belief that giving WARN notice would have precluded the employer from obtaining the capital or business. In addition, the capital or business sought must have been sufficient to avoid or postpone the plant closing.

Unforeseeable Business Circumstances

This exception applies when business circumstances were not reasonably foreseeable when the 60-day notice would have been required.

The employer should be able to point to “some sudden, dramatic, and unexpected action or condition outside the employer’s control”. Federal regulations emphasize that foreseeability should focus on the employer’s “commercially reasonable business judgment”. A company is not required “to accurately predict general economic conditions that also may affect demand for its products or services.”

Natural Disaster

The WARN notice obligations are also mitigated in cases of natural disasters. WARN regulations define “natural disasters” to include “floods, earthquakes, droughts, storms, tidal waves or tsunamis and similar effects of nature.”

For this exception to apply, the employer must show that the reduction in force was a “direct result of a natural disaster.”

Enterprise WARN Act Litigation

In April 2020, the Enterprise rental car company began layoffs with little notice to employees. Some affected employees sued under the WARN Act in the U.S. District Court for the Middle District of Florida. (Benson v. Enterprise Leasing Co., Case No. 6:20-cv-891)

Enterprise made a motion to dismiss the case based on both the “natural disaster” and “unforeseeable business circumstances” exceptions. In January 2021, the court denied the motion, allowing the case to continue.

Notably, the court did not reach the question of whether COVID-19 qualifies as a natural disaster under the WARN Act. However, the judge reasoned that it at least wasn’t clear that the layoff was a “direct result” of COVID-19. Instead, he decided, “This is an indirect result–more akin to a factory that closes after nearby flooding depressed the local economy. Defendants’ facilities or staff didn’t disappear overnight, suddenly wiped out.”

Accordingly, the judge shifted his focus to the unforeseeable business circumstances exception. He acknowledged that the defense “may apply,” but did not warrant dismissal of the case at this early stage. He emphasized that this exception may justify a reduced notice period, but doesn’t necessarily eliminate WARN notice obligations altogether. In this case, one employee received no notice and the other only six days’ notice. Thus, it remains to be litigated whether Enterprise could have given more notice before beginning the layoffs.

Cautionary Tale for Employers

The Enterprise case in Florida will turn on the facts and circumstances of that case. However, the denial of a motion to dismiss serves as a reminder to employers. Litigation is costly and often unpredictable. It is best to carefully consider, with legal experts, the applicability of any potential exception before undertaking reductions in force that could trigger the WARN Act.

COVID-19 might reduce some employers’ WARN notice obligations, but it likely does not eliminate them entirely. The unforeseeable business circumstances exception probably has become harder to rely on now that the pandemic is so far underway. Unfortunately, the adverse economic impact, including layoffs and business closings, is likely to continue, meaning further WARN Act implications.

 

To stay up to date on employment law developments, trends, and best practices, click here to sign up for the Horton Law email newsletter and follow us on LinkedIn.