This is a guest blog post authored by Hugh Carlin, Member Attorney  at Gross Shuman P.C. 

Hugh Carlin, ESQ Shareholder

It has been more than two years since New York passed the Marijuana Regulation and Taxation Act (MRTA), which legalized recreational use and possession of cannabis by residents over the age of 21.  Still, we regularly receive questions from employers stymied by how to deal with a range of employee issues related to the possession and use of cannabis in the workplace.

Given that there is still a lot of confusion and uncertainty surrounding the rights of employers when it comes to cannabis use among employees, I wanted to take a few moments and address some of the most common questions we hear.

I have employees driving company vehicles and we utilize random drug testing. Can I fire an employee that tests positive for cannabis?

No. Under New York State law, with a narrow exception, employers are no longer allowed to test for cannabis. The law does allow for employees to be tested for cannabis if federal or state laws require the employer to undertake mandatory drug testing as a term of employment (for example, commercial truck drivers). But, assuming your business and its employees are not covered under any of the exemptions, you can no longer test for cannabis.

I have an employee that regularly smells strongly of marijuana. Can I discipline/terminate them?

As the sole issue with the employee, you cannot terminate them based on the smell of marijuana alone, any more than you could terminate an employee that smelled strongly of cigarettes. The smell of marijuana can stay behind on clothing, so smelling it on an employees does not me that person consumed it during the work day. However, an employer may request that an employee who will be in face to face contact with patients or customers go home and change his or her clothes so as to eliminate the offending smell.

We have an employee that regularly smokes marijuana on her lunch break. She talks openly about it, telling coworkers it is ok because she is “off the clock.” Is that true?

No, that is not true. NYS Labor Law 201-D clearly states that an employer can prohibit the use of cannabis during work hours, which, under 201-D, includes all paid and unpaid meal breaks during the course of the work day. Provided that you have a written policy prohibiting use during the work day, and that policy has been distributed to employees, it can be enforced. Succinctly, the NYDOL has made clear that employers may prohibit employees from using marijuana during regular work hours, including break and meal periods and on the employer’s premises.

Several employees have reported a fellow employee as “seeming high” while working. This employee works with potentially dangerous equipment. What can I do if I suspect they may be under the influence of cannabis?

Employers are cautioned to proceed carefully. The law says that an employer can take action if the “employee manifests specific articulable symptoms of impairment.”  However, the law does not list what those specific behaviors are. We consider the following be used as a checklist, in whole or in part, to assess an employee’s suspected on the job marijuana induced impairment: changes in the employee’s speech or demeanor; observed changes in the employee’s physical dexterity, agility, or coordination;  irrational or unusual behavior; negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others; involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; carelessness that results in any injury to the employee or others. Employers should make sure that managers and supervisors are well trained to identify and articulate the observed symptoms.

The takeaway is this: this is new territory for most employers, and you want to be confident in your decisions so you do not end up on the wrong side of an employment action. You also want to make sure you are protecting your employees, clients, customers and business. I am available, along with my colleagues in Gross Shuman’s Employment Law practice group, to counsel you and answer any questions you have.

Mr. Carlin’s practice includes wide ranging federal and state court experience in civil litigation within employment law, environmental defense, class actions, product liability defense, corporate dissolution and shareholder disputes, “business divorce,” breach of contract, OSHA and insurance coverage disputes.
He can be reached at 716-854-4300 ext. 240 or