New York State Department of Labor publishes guidance regarding legalized recreational Cannabis use and the workplace

ROCHESTER, N.Y.  — The New York State Department of Labor has released new guidance regarding legalized recreational marijuana use and the workplace. Reports (WROC)

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.

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 notes 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.

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.”

New York employers can’t drug test most employees for weed

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