The Business Council has taken no position on the threshold public policy of legalization of recreational adult 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, and the ability of employers to assure a safe, impairment-free workplace, for the benefit of employees, customers and the general public alike.
We recognize that current Labor Law Section 201-d prohibits discrimination against the engagement in certain activities including “an individual’s legal use of consumable products prior to the beginning or after the conclusion of the employee’s work hours and off the employer’s premises…” It is our hope that cannabis use in the workplace is treated the same as other legal consumables like alcohol.
It’s important to remember that State and Federal law require employers to provide a workplace “free from recognized hazards that may cause serious injury or serious illness.” Towards that end, employers must have the ability to ensure that workers are not under the influence of the active agents of cannabis.
This Article VII proposal preserves key workplace safety mechanisms for employers. Employers have the ability to develop and communicate policies that prohibit any presence of active tetrahydrocannabinols as determined by testing. Employers have the right to test both pre-employment and during the course of employment - either randomly or for cause. Employees who test positive for the active ingredients of cannabis in violation of the employer’s policy may be subject to adverse employment actions consistent with the provisions of that policy. These measures are addressed and maintained in Section 127, Paragraphs 4 and 5 of this legislation, and we strongly support this language.
Paragraph 6 of Section 127 goes on to list the kinds of activities that a person under the influence of tetrahydrocannabinols must avoid so as not to pose a danger to themselves or others. We appreciate the recognition that workers under the influence of the active ingredients of cannabis suffer from the effects of the drug that could impact their ability to perform certain tasks safely.
Finally, in recognition of the current tension with federal law, we recommend the following sentence be added to Section 127, Paragraph 6:
This subdivision shall not require any person or entity to do any act that would put the person or entity indirect violation of federal law or cause it to lose a federal contract or funding.
This clause can be found in Section 43, Paragraph 2 of the Act in the discussion of the protections for medical use of cannabis. We recommend that it be explicitly stated in Section 127 as well.
While we have other concerns regarding the provisions of Part BB, we support adoption of its workplace impairment provisions, which will be strengthened and improved by our recommended amendment discussed above. We support approval of this language.