NYS Dept of Labor Issues Guidance on Recreational Use of Marijuana in the Workplace

On October 8, 2021, the New York State Department of Labor (DOL) issued guidance regarding cannabis in the workplace in the form of Frequently Asked Questions (FAQs).  As we previously reported, the New York State Marijuana Regulation and Taxation Act (MRTA) legalized the recreational use of marijuana for adults age 21 and over and expanded New York State’s medical marijuana program.  The FAQs address the rights and obligations of employers and employees regarding employee recreational use of marijuana in several areas, including those discussed below.

Discrimination Prohibited

The FAQs confirm that employers are prohibited from discriminating against employees for using marijuana outside of the workplace during non-work hours.  However, “employers [may] take employment action or prohibit employee conduct when” (1) such action is required by state or federal law; (2) the employer would be in violation of federal law or would lose a federal contract if it did not take adverse action against the employee; or (3) the employee manifests specific articulable symptoms of marijuana impairment that negatively affects performance or interferes with the employer’s obligation to provide a safe and healthy workplace.  Similarly, employers may not deny employment to applicants for using marijuana, unless required to do so by law, or hiring the applicant would be in violation of federal law or jeopardize a federal contract.   

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