New York has long prohibited any adverse action against employees or potential employees based on their legal activities, including the use of legal consumable products while off-duty (NYS Labor Law Section 201-d). Marijuana, used in accordance with state law, is now in the lawful activity’s category as of March 31, 2021, akin to alcohol and tobacco. Thus, the mere use of marijuana by employees during off hours will generally be of no relevance whatsoever to employers. The symptoms of impairment are not defined in the laws and may be clarified by Department of Law regulations.
Various exceptions to the lawful activities protection for off-duty marijuana use exist. First, federal law remains unchanged in its classification of marijuana as illegal; so, for example, the mandatory testing of truck drivers for drugs, including marijuana, and requirement that positive testers not be permitted to drive, remains unchanged. Second, employers may take disciplinary action against employees who manifest specific articulable symptoms of marijuana impairment that decrease or lessen the employees' ability to perform their job duties or would result in the employers violating their state and federal duties to provide workplaces free from recognized hazards.
Employers are advised not to test for marijuana in pre-employment or random drug tests, as its use outside of work hours that does not result in impairment at work is a lawful activity. Moreover, having such knowledge may enable employees to make a lawful activities claim to avoid discipline on a separate legitimate ground. However, where there are specific articulable symptoms of impairment, a positive reasonable suspicion test would bolster the employer’s decision to discipline the employee. That discipline must be pursuant to an established workplace policy or substance abuse program.