Marijuana in the Workplace: NY Employers Can’t Drug Test Most Employees for Weed, State Says

By: James Battaglia, Rochester First

The New York State Department of Labor has released new guidance regarding legalized recreational marijuana use and the workplace.

According to that new guidance, employers must cite “articulable symptoms of impairment” in almost any effort to take action against an employee due to marijuana use. That means an employer must provide “objectively observable” evidence that the employee’s job performance —or overall workplace safety— is negatively impacted by marijuana use.

“Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment,” the guidance states.

Employers may prohibit marijuana use during work hours, including meal, break, and on-call periods. They may also prohibit marijuana possession on or in company property.

The guidance states that employers may not drug test employees for cannabis unless federal or state law requires drug testing as a condition of the position. The employer is not legally allowed to require drug testing outside such a mandate.

Marijuana legalization in NY: Now that it’s official, what can you really do?

Employers are similarly unable to prohibit marijuana use outside the workplace. Policies banning marijuana use as a condition of employment —unless mandated on a state or federal level— are not permitted, even if they were in place before cannabis use was legalized in New York.

The guidance does note that employers are not legally required to take any action at all if employees use cannabis on the job, even if those employees are under the legal age of 21.

Flying with weed: It’s OK to have this much marijuana in New York airports

As far as remote work is concerned, an employee’s private residence is not considered a “worksite” under New York State labor law. Employers may create a general policy prohibiting cannabis use during working hours, but they may only take action against an employee if that employee exhibits those “articulable symptoms of impairment.”

Recreational marijuana use in New York State was legalized for those 21 and older back in March. The state has yet to set up an official distribution method for cannabis sales, but penalties for possession of less than three ounces have been eliminated. The new Office of Cannabis Management is working to establish guidelines and issue licenses for commercial growth and sales.

New Yorkers will be allowed to grow up to six cannabis plants per adult or 12 plants per household, beginning 18 months after the state’s first dispensary opens.

Read more on this policy.

Battaglia, J. (2021). Marijuana in the workplace: NY employers can’t drug test most employees for weed, state says. Rochester First. https://www.rochesterfirst.com/news/state-news/new-york-state-labor-law-marijuana-cannabis-drug-test-employee-impairment-prohibit-ban-fire-job-work-legal/