On March 31, 2021, New York’s Governor signed into law a statute that legalized the recreational use and possession of marijuana.  On October 21, 2021, the New York State Department of Labor (DOL) issued guidance about marijuana in the workplace.

Can I prohibit the use and possession of marijuana at work?  Yes.  Employers can prohibit marijuana use during work hours, including during paid and unpaid breaks and at all times when the employee is expected to be working (including if the employee leaves on a break).

Employers also can ban the use of marijuana on company property, even after work hours.  Finally, employers can prohibit employees from bringing marijuana onto their property.

When can I take disciplinary action against an employee?  An employer may discipline an employee for the use of marijuana where:

  1. An employer is required to do so under State or federal law, ordinance, or other mandate;
  2. An employer would lose a federal contract or federal funding; or
  3. The employee, while working, manifests specific articulable symptoms of impairment that (1) decrease or lessen the employee’s performance of his duties or (2) interferes with an employer’s requirement to provide a safe and healthy workplace, even if there’s no policy prohibiting such use.

What is a specific articulable symptom?  Unfortunately, the DOL didn’t define specific articulable symptom.  It said that they are objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.

The DOL did provide two examples of what is and isn’t a specific articulable symptom.  The reckless use of heavy machinery might be considered a specific articulable symptom. In contrast, the odor of marijuana on an employee is not enough.

Who does this apply to?  All private employers are covered under this law and therefore should heed this guidance.  State and local governments are also covered.  Noably, federal government employers are not covered.

Can I drug test my employees for marijuana use?  Most likely, you cannot except in certain limited circumstances.  The first, which is quite logical, is if State or federal law requires drug testing for the position and/or is a mandatory requirement for a position. The second is under the disciplinary scenarios described above.

Can I use a positive marijuana drug test as reason for termination?  No, not without more. Since drug tests can’t determine whether an employee is impaired at the time of testing, they’re not a legitimate reason for termination.  For example, an employee could’ve legally consumed marijuana while off work the night before – or even days or weeks beforehand – and still test positive later. Therefore, the test can’t establish that he was impaired at work.

What if I prohibit marijuana at all times?  Employers must update their policies to comply with New York law. While you may still prohibit it at work under certain circumstances (but note medical marijuana still must be considered), employers should check their policies to make sure they’re in compliance with the law.

Want to enact a marijuana policy or do you have a question about whether you can drug test employees for marijuana?  The Coppola Firm is happy to help you navigate your legal options.