The Deregulation of Marijuana in NYS 

In March 2021, the Marijuana Regulation and Taxation Act was signed into law, making New York the 15th state to legalize recreational marijuana. The Cannabis Law legalized the use of cannabis (also known as marijuana or recreational marijuana) by adults 21 years of age or older. The legislation established the Office of Cannabis Management (OCM) to oversee the industry. OCM is responsible for issuing licenses under a two-tier system that separates growers/processers from retail stores. While the law took effect immediately, the regulations for marijuana use in the workplace continue to be refined. 


What does the Deregulation of Marijuana mean for the workplace? 

In general, the deregulation of marijuana has led to implications on drug testing policies and employee rights. Employers should consider removing THC from their pre-employment drug screening panels. Additionally, employers should review any off duty conduct policies in place, as it is unlawful for an employer to discharge, discriminate against, or refuse to hire an individual because of the individual’s legal use of consumable products off the employer’s premises and outside of work hours. The law does not provide exemptions for general “safety sensitive” positions, but exceptions are in place if action would cause the employer to be in violation of federal law or results in the loss of a federal contract or federal funding. 


What does Recreational Marijuana Use mean for Employers in NYS? 

The legalization of recreational marijuana in New York State may require employers to adjust their policies and practices regarding pre-employment drug testing, post-accident or reasonable suspicion testing, employee rights, and workplace safety. 


NYS Marijuana Use Policies in the Workplace

Employers can enforce policies prohibiting the use, possession, transfer, or sale of marijuana at work. Additionally, employers can enforce prohibitions against impairment during work hours or at the workplace, or while using the employer’s equipment or other property. 


Employer Discrimination Policies in NYS 

Employees may have certain rights regarding off-duty recreational marijuana use. New York State law protects individuals who use marijuana outside of the workplace from discrimination. However, employers can still take action if an employee’s marijuana use impairs job performance or violates workplace policies. 


Marijuana Drug Testing Policies for Employers in NYS 

Employers may need to review and potentially revise their drug testing policies. Since off duty use of recreational cannabis is now legal, employers may want to remove cannabis from pre-employment drug testing panels. THC, the active ingredient in cannabis, can stay in a person’s system after intoxication wears off. How long the presence of THC stays in the user’s system can vary depending on how frequently or for how long a period they have been using. 

Employers should exercise caution in post-accident drug testing as well. A positive drug test for cannabis in someone’s system cannot determine if someone is actually under the influence at the time of testing. Ensure any testing is done is based on specific articulable symptoms: 

  • that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position or 
  • that interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law. 


Employee Medical Marijuana Use in the Workplace 

Employers may be required to provide reasonable accommodations for employees who use medical marijuana. This could include modifying work duties or schedules to accommodate medical treatment or allowing the use of medical marijuana during non-working hours. It is important to note that employers are not required to accommodate marijuana use if it would create an undue hardship or pose a safety risk. Employers should engage in an interactive process with employees to determine appropriate accommodations on a case-by-case basis. 

Similar to off duty use of recreational marijuana, employees who are certified to use medical marijuana may have legal protections against discrimination in the workplace. New York State prohibits employers from taking adverse employment actions against employees based solely on their status as medical marijuana cardholders or their use of medical marijuana outside of work hours. 


Cannabis Use in Manufacturing and the Production Sector 

Employers in the manufacturing industry should prioritize safety, compliance, and clear communication when addressing cannabis use in the workplace. By implementing effective policies and practices, employers can minimize risks and maintain a safe and productive work environment. 

Manufacturing environments often involve heavy machinery, hazardous materials, and other safety-sensitive activities. Employers have a legal obligation to maintain a safe workplace under Occupational Safety and Health Administration (OSHA) regulations. Cannabis use, whether for medical or recreational purposes, can impair cognitive function, reaction times, and decision-making abilities, which can pose serious safety risks in manufacturing settings. Employers should ensure that their policies and practices effectively address these safety concerns. 


FAQs for Employers 

Q: I heard that an employee uses marijuana on the weekends. Can I fire them? 

A: Employers cannot discipline or otherwise discriminate against employees for suspected or known off-duty marijuana use. 


Q: An employee went for a post-accident drug test and the results were positive for marijuana. Can I fire them? 

A: Employers cannot take disciplinary action based solely on a positive drug test. While a confirmed positive test result may corroborate impairment, action is only advised if there are also “articulable symptoms” of impairment. 


Q: The background check results for a candidate indicated they were convicted of illegal possession of marijuana in 2019. Can I rescind the offer of employment? 

A: Hiring decisions should not be made based on convictions for prior offenses now legal under the new law. 


Q: A manager saw an employee using marijuana during their lunch break. What can we do? 

A: It is important to note that “working hours” include meal periods and breaks. Employers can enforce prohibitions against the use of cannabis at work. 


Q: An employee arrived at work smelling of marijuana with watery eyes, slow and distracted speech, and delayed reactions to questions. Can we fire them? 

A: Ensure 2 members of management or HR independently document their observations of impairment. You can then make arrangements for reasonable suspicion testing. Wait for the test results before taking disciplinary action. If the test results are positive, you can take employment action based on violation of your policy prohibiting impairment during working hours. 


Q: An employee refused to take a reasonable suspicion drug test after two members of management observed articulable symptoms. What do we do? 

A: Ensure your policy addresses refusal to take a test. It could say it will be treated as a positive result or will result in immediate termination. Ensure you have documented the observations of management/HR on the articulable symptoms. 


Next Steps for Employers: 

  1. Put a drug and alcohol policy in place or edit your current policy to reflect updated regulations. 
  2. Ensure employees understand the possession and use or cannabis at work and during work time is strictly prohibited. 
  3. Train managers and supervisors on articulable signs of impairment. 
  4. Use a reasonable suspicion checklist (completed independently by two members of your supervisory staff) before taking disciplinary action. 
  5. Use a drug test only to confirm a suspicion that someone is under the influence of cannabis in the workplace only after completing the reasonable suspicion process. 
  6. Be prepared with a plan for reasonable suspicion testing, including where the testing will take place and how the employee will be transported to and from the test. 
  7. Remove testing for cannabis from your pre-employment drug testing panels. 


We help hundreds of businesses stay on top of ever-changing workplace compliance topics. Navigating uncertain waters can be intimidating, and lead to compliance issues down the road – you don’t have to do it alone. Our expert HR team is here to help you navigate situations like these, while keeping your business compliant. Please contact us to learn how we can help your business.