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New Guidance States that NY Employers Can’t Test Employees for Marijuana Usage

The NY State Department of Labor issued new guidance regarding an employer’s ability to test an employee for marijuana. NY Employers are no longer allowed to test an employee for marijuana in most cases or take adverse action against an employee for the use of recreational marijuana. Simply observing signs that an employee may use marijuana is insufficient to warrant any adverse action. This is true even if an employer suspects an employee is under the influence. For example, if an employee smells like marijuana at work, an employer cannot take any adverse action based on that alone.


Only where “articulable symptoms of impairment” are observed may an employer consider taking action against an employee for the use of marijuana. These symptoms must be objective – there has to be evidence that the employee’s performance is suffering or that there is a safety risk to the workplace.


Employers can still have policies in place prohibiting marijuana usage during work hours, including any break periods or on-call periods. Similarly, marijuana possession can still be prohibited on company property, or in company property, such as a company vehicle. (Under NY Labor Law, a remote employee working from a private residence is not considered to be working at a “worksite.”)


Any employer policies banning the use of marijuana outside of the workplace must be revised. An individual’s personal marijuana usage cannot be used as a reason to deny or terminate employment. The only exception to this is if a particular position is subject to state or federal guidelines that make abstaining from marijuana usage a condition of employment. Examples of this are commercial vehicle drivers and most police officers.


If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Alina Nadir, the author of this piece, here or at (585) 258-2805.

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