§184. Condition of obtaining a state license
This far-reaching cannabis legislation touches many areas of the law from criminal to civil, tax to business. As a public policy generally, The Business Council has taken no position. 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.
The provisions of this section 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. It requires 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 to take 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 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.).
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 employer burden for 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:
For the reasons stated above, we encourage changes to the language in the bill that reflect the realities of adult-use cannabis and its impact on the workplace.
This section requires, as a condition of obtaining a state license – that any licensee to cultivate, process, distribute and sell adult-use cannabis enter into a labor peace agreement with a bona fide labor organization. The maintenance of such a labor peace agreement shall be an on-going condition of licensure.
The state is not within its right to require such an arrangement in order to obtain a license. The National Labor Relations Act forbids employers from interfering with, restraining, or coercing employees in the exercise of 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 mandating employees to join a union and pay union dues, regardless of their individual choice, requiring an organization – 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. Any expansion of this requirement beyond the cannabis industry would never receive legislative approval – and if it did – would make New York State the least competitive state for business in the nation and begin an exodus of jobs and businesses from New York.
For the reasons stated above, we encourage that this section be removed from the language in the bill.