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2022 Legislation Update – New York

Guidance on Adult Use Cannabis in the Workplace

In October 2021, the New York Department of Labor (NYDOL) released Adult Use Cannabis And The Workplace – New York Labor Law 201-D,  guidance to address some of the most common situations or questions in the workplace related to adult-use cannabis and the state’s Marijuana Regulation and Taxation Act. For instance, this guidance about cannabis use at work or during work hours is quoted from the document:

    • 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.).

    • For remote employees, can employers prohibit use in the “worksite”? The NYDOL does not consider an employee’s private residence being used for remote work a “worksite” within the meaning of the law. However, an employer may act if an employee is exhibiting articulable symptoms of impairment during work hours as described above and may institute a general policy prohibiting use during working hours.

    • Can employers prohibit use when the employee uses a company vehicle? Yes, employers are permitted to prohibit use in company vehicles or on the employer’s property, even after regular business hours or work shifts.

Paid Family Leave

On November 1, 2021, New York Governor Kathy Hochul signed legislation (NY S 2928-Aand A 6098-A) adding sibling (including a biological or adopted sibling, half-sibling, or stepsibling) to the definition of family member for purposes of New York’s Paid Family Leave Law.

The law takes effect on January 1, 2023.

On October 6, 2021, the New York Workers Compensation Board amended the cap on paid family leave (PFL) benefits when leave is taken intermittently. Specifically, as of January 1, when an employee takes PFL in daily increments, the maximum number of days of PFL available is calculated based on the average number of days worked per week multiplied by 12. Previously, the law capped leave taken in daily increments to 60 days per year.

The law is effective January 1, 2022.

Whistleblower Protections for Former Employees and Independent Contractors

On October 28, 2021, New York Governor Kathy Hochul signed legislation (SB 4394) adding protections against retaliation for former employees, not just current employees, and independent contractors (collectively referred to as “employee” in the law).

Employers can’t take retaliatory action against an employee, whether or not it’s within the scope of their job duties, because they:

    • Whistle blow to a supervisor or a public body;
    • Testify in a related action against their employer; or
    • Refuse to participate in illegal activity.

Employees aren’t required to give their employer advance notice when whistleblowing to a supervisor or public body if:

    • There is an imminent and serious danger to public health;
    • By giving notice the employee thinks related evidence will be destroyed;
    • Minors are at risk;
    • The employee or someone else would be physically harmed; or
    • The supervisor already knows about the issue and won’t correct it.

The law also has a mandatory posting requirement for employers that must notify employees about their protections, rights, and obligations under the law and be in a conspicuous, easily accessible, well-lit area that is frequented by employees and applicants.

The law is effective January 26, 2022.

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