New York State Department of Labor Issues Guidance on Cannabis and the Workplace

NY State Government: Week in Review

On October 8, the New York State Department of Labor (NYSDOL) issued a frequently asked questions document (FAQ) offering guidance for the workplace related to the state’s Marijuana Regulation and Taxation Act (MRTA). MRTA, in effect as of March 31, 2021, legalizes the use and possession of cannabis for adults 21 years of age or older. Pursuant to MRTA’s provisions, employers are prohibited from discriminating against employees based on employees’ use of cannabis outside of the workplace, outside of work hours and when not using an employer’s equipment (e.g., company vehicle) or property.

Among other clarifications, the guidance in NYSDOL’s FAQ identifies the instances when an employer is permitted to take employment action or prohibit employee conduct, including where:

  • An employer is/was required to take such action by state or federal statute, regulation or ordinance or other state or federal governmental mandate;
  • The employer would be in violation of federal law;
  • The employer would lose a federal contract or federal funding;
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties; or,
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.

The FAQ also clarifies that drug testing by employers for cannabis use is prohibited except in very select circumstances (e.g., where required by federal or state law, such as for for-hire drivers of motor carriers). Moreover, the guidance states that a drug test may not serve as a basis for an employer’s conclusion that an employee was impaired by cannabis at the time, because current testing does not measure impairment.

Additional guidance from the FAQ (linked here) is referenced below:


Can an employer take action against an employee for using cannabis on the job?

An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that:

  • Decrease or lessen the performance of their duties or tasks
  • 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 laws

What are articulable symptoms of impairment?

There is no dispositive and complete list of symptoms of impairment. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened. Employers are cautioned that such articulable symptoms may also be an indication that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer.

Employers should consult with appropriate professionals regarding applicable local, state and federal laws that prohibit disability discrimination. For example, the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.

What cannot be cited by an employer as articulable symptoms of impairment?

Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited. However, employers are not prohibited from disciplinary action against employees who are using cannabis during work hours or while using employer property.

Can employers use drug testing as a basis for an articulable symptom of impairment?

No, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment.

Can I fire an employee for having a noticeable odor of cannabis?

The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-D.

Can employers prohibit the use of cannabis during meal or break periods?

Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work and all time the employee is actually engaged in work.

Such periods of time are still considered work hours if the employee leaves the worksite.

Can employers prohibit the use of cannabis during periods in which an employee is on call?

Yes, employers may prohibit cannabis during “work hours,” which includes the time that the employee is on call or “expected to be engaged in work.”

Can employers prohibit cannabis possession at work?

Yes, employers may prohibit employees from bringing cannabis onto the employer’s property, including leased and rented space, company vehicles and areas used by employees within such property (e.g., lockers, desks).

For remote employees, can employers prohibit use in the “worksite”?

The Department of Labor does not consider an employee’s private residence being used for remote work a worksite within the meaning of Labor Law Section 201-D. However, an employer may take action if an employee is exhibiting articulable symptoms of impairment during work hours as described above and may institute a general policy prohibiting use during working hours.

Can employers prohibit use when the employee uses a company vehicle?

Yes, employers are permitted to prohibit use in company vehicles or on the employer’s property, even after regular business hours or work shifts.

Can employers prohibit the use of cannabis outside of the workplace?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a).

Can employers require that employees promise or agree not to use cannabis as a condition of employment?

No, employers are not permitted to require employees to waive their rights under Labor Law Section 201-D as a condition of hire or continued employment.

Are existing policies prohibiting use permitted?

No, unless an exception applies. Employers are encouraged to update or amend such policies to reflect changes to New York State law.


We will continue to monitor the state’s implementation of MRTA for further guidance and provide you with updates as they become available. If you have any questions related to this issue, please do not hesitate to contact any one of the Manatt team.

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