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SUBJECT
§85. Condition of obtaining a state license
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This far-reaching cannabis legislation touches many areas of the law from criminal to civil, tax to business. The Business Council has taken no position on the threshold public policy of legalization of recreational use of cannabis. However, in areas of the proposal where adult-use cannabis intersect with employment and safety in the workplace, we are concerned with the proposal’s impact on the employer/employee relationship. The Business Council opposes the following provisions of this legislation.
Section 127
Paragraphs 4 and 5 of Section 127 place a significant burden on the employer to demonstrate the employee’s impairment as a result of the use of cannabis that goes well beyond what is required with regard to other intoxicating substances. In order to take any action in response to concerns about workplace impairment, this section would require the employer to establish that cannabis use has decreased or lessened the employee’s ability to perform their job duties and manifests certain “articulable symptoms” of impairment.
This proposed language will compromise an employer’s obligation to maintain a workplace free from hazards, including those resulting from employee impairment. Therefore, this language will impair the employer’s rights and obligations to protect the safety and well-being of employees and customers alike.
Under the proposed language, an employer would be prohibited from taking any adverse employment action unless impairment could be established. Requiring an employer to define “articulable symptoms” that decrease employee performance would require employers to “articulate,” in writing, for each position – and for each duty within that position – how cannabis use would decrease performance. Medical science has yet to establish a measurable level of THC/cannabinoids necessary to demonstrate impairment. To require all employers of one or more to do so will be an impossible to achieve task for most employers.
Any level of workplace “impairment” should be sufficient to warrant employer action. In addition to the impact of cannabis use on an employee’s ability to perform their job duties, impaired employees could potentially be a hazard to themselves and others. This impairment could manifest itself in many ways – for example, in trips and falls, exposure to hazardous chemicals or blood borne pathogens by failing to use proper personal protective equipment, or the operation of equipment not related to their duties (e.g. personal auto during commute, office machinery, etc.), and others.
Both New York State occupational safety laws and the Federal Occupational Safety and Health Act require employers to maintain a safe and healthful workplace free from recognized hazards. Creating a separate and significant employer burden for addressing cannabis impairment will interfere with an employer’s obligation under OSHA’s General Duty Clause.
Alternatively, we suggest the following changes to that reflect an employer’s general obligations under current law. Specifically:
§127
4. Unless an employer establishes that the lawful use of cannabis has impaired the employee's ability to perform the employee's job responsibilities, it shall be unlawful to take any adverse employment action against an employee based on conduct allowed under this chapter.
5. For the purposes of this section, an employer may consider an employee's ability to perform the employee's job responsibilities to be impaired when 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.
4. It is the public policy of the State of New York to prohibit employers from discriminating against employees for legal activities occurring outside of the workplace. Nothing in this section shall interfere with an employer’s obligation to provide a safe and healthy work place that is free from recognized hazards as required by state and federal occupation safety and health law, or require an employer to commit any act that would cause the employer to be in violation of any other federal law, or that would result in the loss of a federal contract or federal funding
For the reasons stated above, we encourage changes to the language in the Executive Budget that reflect the realities of adult-use cannabis and its impact on the workplace.
Section 85
Section 85 of this legislation would require that, as a condition of obtaining a state license to cultivate, process, distribute and sell adult-use cannabis, an entity must enter into a bona fide collective bargaining agreement with a bona fide labor organization. The maintenance of such a collective bargaining agreement will also be an on-going condition of state licensure.
We believe this mandate is inconsistent with federal law, and it is therefore beyond the state’s legal authority to impose such a mandate. The National Labor Relations Act forbids employers from interfering with, restraining, or coercing employees in the exercise of any rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity. Similarly, labor organizations may not restrain or coerce employees in the exercise of these rights.
Aside from the ethical questions of legally mandating employees to join a union and pay union dues, regardless of their individual choice, legislation to require an entity – as a condition of doing business in New York – to recognize a bargaining unit and successfully reach a collective bargaining agreement is clearly contrary to federal law.
It is also arbitrary and unfair. No other private enterprise is held to this obligation. Moreover, this legislation would impose a unionization mandate on employees regardless of their interest in having such representation.
It is hard to imagine the Administration or legislature imposing a unionization mandate as a condition of other state issued business permits or licenses. To do so would starkly set New York State apart from other states, and present a new, unique burden to private sector investment and job creation in New York.
For the reasons stated above, we encourage that this section be removed from the language in the Executive Budget.
Draft Legislative Language
§ 85. Collective bargaining
1. The executive director shall require all licensees under this article with more than twenty-five employees, including registered organizations authorized pursuant to section forty of this chapter to cultivate, process, distribute and sell adult-use cannabis products, to enter into a bona-fide collective bargaining agreement with a bona-fide labor organization.
2. The maintenance of such a collective bargaining agreement shall be an ongoing material condition of the entity's license.
§ 127. Protections for the use of cannabis; unlawful discriminations
4. Unless an employer establishes that the lawful use of cannabis has impaired the employee's ability to perform the employee's job responsibilities, it shall be unlawful to take any adverse employment action against an employee based on conduct allowed under this chapter.
5. For the purposes of this section, an employer may consider an employee's ability to perform the employee's job responsibilities to be impaired when 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.
6. Nothing in this section shall restrict an employer's ability to prohibit or take adverse employment action for the possession or use of intoxicating substances during work hours, or require an employer to commit any act that would cause the employer to be in violation of federal law, or that would result in the loss of a federal contract or federal funding.
7. As used in this section, "adverse employment action" means refusing to hire or employ, barring or discharging from employment, requiring a person to retire from employment, or discriminating against in compensation or in terms, conditions, or privileges of employment.