Question:
Hi Jennifer,
I have a mid-level provider who is coming to work high, or getting high. Can I fire him?
Thanks,
Dr. P
Answer:
Yes. Appropriate for Cinco de Mayo and Taco Tuesday! There is no defense to alcohol use. Cannabis is protected, medicinally, in certain circumstances, however, terminating for "articulable symptoms of impairment and use against lawful Company policy, are absolutely defensible.
It may sound unnecessary, but it is important to have a Company written policy around alcohol and drug use at work, on work premises. Check your handbooks and make sure you prohibit. As with all Company policy, enforce neutral and mutual - what works for thee, works for me. Do not make exceptions. Be thoughtful with writeups. Be consistent with consequences. Engage with counsel preventatively.
Happy to help with policy and enforcement, as needed. An ounce of cure is worth a pound of prevention.
According to the NYS Department of Labor - https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf
Can an employer take action against an employee for using cannabis on the job?
An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that: • Decrease or lessen the performance of their duties or tasks • Interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws
What are articulable symptoms of impairment?
There is no dispositive and complete list of symptoms of impairment. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of the position of their position are decreased or lessened. Employers are cautioned that such articulable symptoms may also be an indication that an employee has a disability protected ADULT USE CANNABIS AND THE WORKPLACE New York Labor Law 201-D by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer. Employers should consult with appropriate professionals regarding applicable local, state, and federal laws that prohibit disability discrimination. For example, the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.
What cannot be cited by an employer as articulable symptoms of impairment?
Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited. However, employers are not prohibited from disciplinary action against employees who are using cannabis during work hours or using employer property.
Can employers use drug testing as a basis for an articulable symptom of impairment? No, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment. (For more information, see section Drug Testing below).
Can I fire an employee for having a noticeable odor of cannabis? The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-D.
Can employers prohibit use of cannabis during meal or break periods? Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. Such periods of time are still considered “work hours” if the employee leaves the worksite.
Can employers prohibit use of cannabis during periods in which an employee is on-call? Yes, employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work.”
Can employers prohibit cannabis possession at work? Yes, employers may prohibit employees from bringing cannabis onto the employer’s property, including leased and rented space, company vehicles, and areas used by employees within such property (e.g., lockers, desks, etc.).
I have a mid-level provider who is coming to work high, or getting high. Can I fire him?
Thanks,
Dr. P
Answer:
Yes. Appropriate for Cinco de Mayo and Taco Tuesday! There is no defense to alcohol use. Cannabis is protected, medicinally, in certain circumstances, however, terminating for "articulable symptoms of impairment and use against lawful Company policy, are absolutely defensible.
It may sound unnecessary, but it is important to have a Company written policy around alcohol and drug use at work, on work premises. Check your handbooks and make sure you prohibit. As with all Company policy, enforce neutral and mutual - what works for thee, works for me. Do not make exceptions. Be thoughtful with writeups. Be consistent with consequences. Engage with counsel preventatively.
Happy to help with policy and enforcement, as needed. An ounce of cure is worth a pound of prevention.
According to the NYS Department of Labor - https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf
Can an employer take action against an employee for using cannabis on the job?
An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that: • Decrease or lessen the performance of their duties or tasks • Interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws
What are articulable symptoms of impairment?
There is no dispositive and complete list of symptoms of impairment. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of the position of their position are decreased or lessened. Employers are cautioned that such articulable symptoms may also be an indication that an employee has a disability protected ADULT USE CANNABIS AND THE WORKPLACE New York Labor Law 201-D by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer. Employers should consult with appropriate professionals regarding applicable local, state, and federal laws that prohibit disability discrimination. For example, the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.
What cannot be cited by an employer as articulable symptoms of impairment?
Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited. However, employers are not prohibited from disciplinary action against employees who are using cannabis during work hours or using employer property.
Can employers use drug testing as a basis for an articulable symptom of impairment? No, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment. (For more information, see section Drug Testing below).
Can I fire an employee for having a noticeable odor of cannabis? The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-D.
Can employers prohibit use of cannabis during meal or break periods? Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. Such periods of time are still considered “work hours” if the employee leaves the worksite.
Can employers prohibit use of cannabis during periods in which an employee is on-call? Yes, employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work.”
Can employers prohibit cannabis possession at work? Yes, employers may prohibit employees from bringing cannabis onto the employer’s property, including leased and rented space, company vehicles, and areas used by employees within such property (e.g., lockers, desks, etc.).
