The New York State Department of Labor has published additional guidance regarding the use of cannabis and the workplace. Notably, employers cannot test employees or job applicants for marijuana (unless they fall under an exception), nor take action against employees who use it off-hours unless they manifest specific symptoms of being under the influence while on the job.
In March 2021, New York State legalized and regulated the use, production, and sale of marijuana for adults through the Marijuana Regulation & Taxation Act. The law also amended the New York Labor Law to increase protections for employees who use recreational marijuana.
While the previous Labor Law had made it illegal for any employer to take adverse employment action against employees for engaging in lawful, off-duty recreational conduct, the amendment specifically added the legal use of cannabis under such conduct.
For more background, see our posts from April 8 and May 4.
Now, the NYDL has published additional FAQ guidance regarding cannabis and the workplace.
As anticipated, the guidance clarifies that employers MAY NOT test existing or potential employees for marijuana use, unless they fall under the limited exception where “federal or state law requires drug testing or makes it a mandatory requirement of the position.”
Employers MAY take action against employees who "manifest specific articulable symptoms" of being under the influence of cannabis while on the job, but these symptoms cannot be just a noticeable odor or positive test results.
Rather, these symptoms must either:
- 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.
Employers may still prohibit the use of cannabis on work premises, during work hours, and on break periods.
Employers should be aware that many standard drug testing panels still include a test for the presence of cannabis. If they engage in drug testing of job applicants and/or employees, they should specifically exclude marijuana from the drug panel.