On October 19, 2021, New York State’s Department of Labor (NYSDOL) updated its initial guidance to employers – itself issued only days earlier – concerning the legalized use of cannabis and the workplace. The new guidance makes clear that, outside those limited instances in which federal or state law makes such testing a condition of employment, employers within the state are prohibited from testing their employees for cannabis use.

The NYSDOL’s guidance interprets New York’s recently passed Marijuana Regulation and Taxation Act (MRTA) to provide employers with information as to its real-world implementation. It makes clear that employers are permitted to take appropriate action against an employee only where the employee manifests “specific articulable symptoms” of on-the-job marijuana use. It does not, however, define those specific articulable symptoms, and states only that they must either: (i) decrease or lessen the performance of their duties or tasks; or (ii) interfere with their obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws. To take adverse action, the employer must be able to cite to “objectively observable” evidence that one or both of these are true. Observable signs of use that do not indicate impairment on their own will not suffice.

Critically, the updated guidance explicitly bars the employer from using a test for cannabis use as the basis for its conclusion that an employee was impaired by the use of cannabis. It states further that the smell of cannabis on its own is not an “articulable symptom” of impairment, and that an employer cannot test an employee for cannabis merely because such testing may be permitted under federal law.

The MRTA prohibits employers from making their employees not to use cannabis outside the workplace as a condition of their employment.

Employers are advised to review their workplace drug use policies and practices as soon as possible to ensure they conform with the MRTA.

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