Can I get fired for using cannabis when I’m not at work?  Questions & Answers.

cannabis use and the workplaceIt has now been over a year since cannabis use was legalized in the State of New York, but not all employers are aware that they can no longer screen potential employees for cannabis use, and, perhaps more importantly, cannot discipline or terminate an employee based on that employee’s use of cannabis outside of working hours.

The Marihuana Regulation & Taxation Act (MRTA) was signed into law on March 31, 2021, legalizing adult-use cannabis (also known as marijuana, or recreational marijuana) in New York State.  The law also amended a section of the New York State Labor Law (201-D) to clarify that cannabis used in accordance with state law is a legal consumable product, and therefore employers cannot terminate, discipline, or otherwise discriminate against employees based on the employee’s use of cannabis when it occurs:

  • Outside of the workplace,
  • Outside of work hours, and
  • While not using the employer’s equipment or property.

The new law raises many questions for both employers and employees.  Here are some answers you may find helpful:

Can my employer require me to take a drug test for cannabis?

No. Under the new law, an employer cannot require you to take a drug test for cannabis either as a condition of hiring or ongoing employment.  However, an employer can still test you for cannabis if federal or state law requires it for your particular position. For example, mandatory drug testing is required for drivers of commercial vehicles in New York State. All employers are still permitted, however, to test for other drugs and substances.

Can I be fired or disciplined if I show up to work smelling like marijuana?

No. The smell of cannabis on an employee is not recognized under the law as an ‘articulable symptom of impairment.’  The law recognizes that a person can smell of cannabis for a variety of reasons, such as sharing a ride to work with someone who was using cannabis.

What is an ‘articulable symptom of impairment?’

An employer can take disciplinary action against you, including firing, if you are impaired by cannabis while you are working.  While there is no specific list of symptoms that an employer can use, (such as bloodshot eyes or smelling of cannabis), impairment means cannabis has decreased or lessened the performance of your duties or tasks and/or interfered with your employer’s obligation to provide a safe and healthy workplace, free from recognized hazards.

Can I use cannabis during a lunch or other break from work?

Your employer is allowed to prohibit you from using cannabis during “work hours,” including paid and unpaid breaks and meal times. Even if you leave your worksite for a break, it is still considered work hours.

What if I’m not at work but I’m “on call?” 

Your employer can prohibit you from using cannabis during “work hours,” which means any times you are expected to be engaged in work, including on call hours.

Can my employer prohibit me from having marijuana at work, even if I am not using it?

Yes, your employer can prohibit employees from bringing cannabis onto the employer’s property, including leased and rented space, company vehicles, and areas used by employees such as lockers and desks.

What if I’m using a company vehicle outside of work hours?

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

Can my employer make me agree not to use cannabis as a condition of my employment?

No. Whether you’re being offered a job or you are already working, an employer cannot require you to promise or agree not to use cannabis outside the workplace.

What if I’m working from home? Can my employer prevent me from using cannabis?

The Department of Labor does not consider an employee’s home a “worksite” under the new law, therefore employees are permitted to use cannabis at home so long as it is outside of normal business hours or your work shift.  However, an employer can still take action if you are exhibiting the symptoms of impairment, discussed above, during your work hours.

What if I’ve been fired or denied employment because I’ve used cannabis outside of work?

If you or someone you know has been recently refused an offer of employment because of a drug screening for cannabis, or terminated or otherwise discriminated against by an employer because of off-hours cannabis use, contact our employment law attorneys at Martin, Harding & Mazzotti. You may be entitled to compensation or other remedies. We are here for you 24/7. Contact us today for a free, no obligation case evaluation. Click, Chat, or call 1800LAW1010.

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