On Oct. 8, 2021, the New York State Department of Labor (NYSDOL) published
a list of frequently asked questions and answers
addressing common issues about the legalization of recreational marijuana
and its effect on New York workplaces. The FAQs offer valuable insights for New
York employers as they work to navigate the new landscape of legalized
On March 31, 2021, former Gov. Andrew Cuomo signed
Marijuana Regulation & Taxation Act
(MRTA) legalizing recreational marijuana in New York state for adults.
Relevant to New York employers, the MRTA amended New York Labor Law § 201-d
to prohibit employers from disciplining or discriminating against employees
who recreationally use or consume marijuana outside of work hours, off an
employer’s premises, and without using an employer’s equipment or property.
However, employers may take action against employees for marijuana use if:
(1) the employer is required to take action under state, federal or other
government mandate; (2) the employee, while working, manifests specific
articulable symptoms of cannabis impairment that decrease the employee’s
job performance or interfere with the employer’s obligation to provide a
safe and healthy workplace; or (3) the employer would be in violation of
federal law or may lose federal funding by not taking action against the
The MRTA and § 201-d apply to all public
and private employers in New York state, but do not cover independent
contractors, volunteers, students who are not employees, or individuals
working under familial obligations. The FAQs also clarify that the law does
not apply to employees who work for New York employers outside New York.
Additionally, employees under the age of 21 are not covered, because New
York state law prohibits cannabis use by individuals younger than 21.
The first section of the FAQs addresses when it is appropriate to
discipline employees for cannabis use. Since the MRTA went into effect,
employers have pressed for a precise definition of the “specific
articulable symptoms of cannabis impairment” that must be present for
employers to take disciplinary action against employees.
Unfortunately, the NYSDOL declined to provide a precise definition, instead
stating: “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 ...
their position are decreased or lessened.” As an example, the NYSDOL said
the operation of heavy machinery in an unsafe and reckless manner may be
considered an articulable symptom of impairment.
The NYSDOL also answered specific questions as to what employers cannot
cite as articulable symptoms of impairment, such as observable signs of
marijuana use that do not indicate impairment on their own, a test for
marijuana usage or the odor of marijuana on an employee.
The NYSDOL stated that employers are not required to: (1) fire or
discipline employees who use or are impaired by marijuana on the job; or
(2) rehire employees who were terminated for marijuana use prior to its
Marijuana Use at Work
The FAQs state that employers may
prohibit employees from using cannabis during “work hours,” which include
paid and unpaid breaks and meal periods, even if employees leave the
employer’s premises during those breaks. Additionally, employers may
prohibit: (1) the use of marijuana when employees are on call; (2) the use
and possession of marijuana while on the employer’s property; and (3) the
use and possession of marijuana in company vehicles.
For remote employees, because the NYSDOL does not consider an employee’s
private residence to be a “work site,” employers may not prohibit employees
who work at home from possessing recreational marijuana in their homes. But
employers may discipline employees working remotely in New York if they
exhibit specific articulable symptoms of impairment during their working
The NYSDOL encourages employers to update or amend their policies regarding
marijuana use to reflect the changes to New York state law. The FAQs reiterate that it is lawful for
employers to have policies that prohibit the use and possession of
marijuana during working hours and on the employer’s property; however,
employers cannot require employees to promise or agree to not use marijuana
as a condition of employment.
Employee Drug Testing
The FAQs also reiterate that an employer
may not test for cannabis unless the employer satisfies the requirements of Section 201-d(4-a) or other applicable
laws (e.g., the employer may be in violation of federal or state mandate if
it does not drug test employees). But an employer may not test employees
for marijuana use “merely because it is allowed or not prohibited under
federal law.” Therefore, the NYSDOL has taken the position that an employer
may test for marijuana only if it is expressly required to do so by law.
For further information or questions about the MRTA or § 201-d, or for any
questions regarding employment laws, please contact the authors, your
McGuireWoods contact, or a member of the firm’s labor and employment group.