Cannabis Drug Testing in the Workplace

Employers are prohibited from discriminating against employees based on their use of cannabis outside of the workplace and outside of work hours.

An employer may discipline or fire and employee, or prohibit employee use of cannabis, where:

• The employer is required to act by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate (e.g., Department of Transportation, Federal Aviation Administration, etc.)

• The employer would be in violation of federal law 

• The employer would lose a federal contract or federal funding

• The employee exhibits specific symptoms of cannabis impairment while working that decreases performance or interferes with a safe and healthy workplace

MRTA applies to all private and public New York state employers regardless of size or industry.

Yes. The legalization of adult use cannabis does not make legal for employees to come to work intoxicated. However, there is no widely available test that shows whether a person is high or intoxicated at the time of testing.  The smell of marijuana is not enough to prove an employee is under the influence at work. An employee must exhibit articulable symptoms of impairment for employer action to be justified.  While there is no complete list of such symptoms, operation of equipment in an unsafe or reckless manner is considered a symptom of impairment. 

Yes. Employers may prohibit cannabis use during work hours, which includes on-call time, paid and unpaid breaks and meal periods on or off the worksite.  Employers also may prohibit cannabis possession on employer property, which includes company vehicles, employee lockers and desks. While an employee’s private residence being used for remote work is not considered a worksite, an employer can still have a policy prohibiting cannabis use and/or impairment during working hours.

No, unless the employer is required to do so by law or mandate.  Because drug tests can detect marijuana in an employee’s system up to 30 days after cannabis use, a positive test does not mean the employee was under the influence at the time of the drug test. 

Yes, employers can still require employees to be drug tested regularly or at random. 

It is illegal for an employer to fire an employee if the only justification is testing positive for marijuana. 

Yes, generally, pre-employment drug testing is legal throughout New York State. However, some municipalities may have additional restrictions and regulations that employers must follow regarding pre-employment drug testing. Employers should review and follow all applicable laws and regulations related to drug testing to avoid legal issues and ensure compliance with local, state, and federal requirements.