The Complete Guide to Medical Marijuana and Employment in New York

If marijuana is legal can employers test for it
By Andrew Ward Updated March 8th

The enactment of New York’s Marihuana Regulation and Taxation Act (MRTA) on March 31, 2021, was noteworthy for various reasons. Not only did it lay the groundwork for adult-use sales, likely slated for 2023, it also redefined New York State labor laws regarding cannabis use. Under the MRTA, New York state employee rights now prevent employers from refusing to hire or employ, discharging, or otherwise discriminating against most employees for using cannabis during their personal time.

Keep scrolling to learn more about critical rules regarding New York State drug testing, exceptions to the rule, and more. 

NY Employers Cannot Test Most Workers for Cannabis

New york state employee drug testing policy

If marijuana is legal, can employers test for it? In most cases, no, but some exceptions apply. 

The MRTA helped New York become the first U.S. state to essentially prohibit employers from testing current and potential employees. However, the following scenarios and professions can still be subject to drug testing:

  • The employer is required to drug test certain employees under state or federal law.
  • The employer would lose their federal contract or funding if they didn't drug test.
  • The employee is manifesting "specific articulable symptoms of cannabis impairment" on the job that interfere with their duties or with the employer's obligation to provide a safe and healthy workplace according to workplace safety laws.

Drug testing can't be used as a "specific articulable symptom of cannabis impairment." Smelling like cannabis is not considered adequate justification for a drug test or further action either, as it is not deemed sufficient cause to assume someone is impaired. 

Will Prior Cannabis Convictions Show Up on Background Tests?

Not if it is a conviction from New York. New York’s Cannabis Control Board announced that the state is currently suppressing roughly 203,000 cannabis-related charges from background checks. These records will be sealed or expunged as part of the MRTA.

Can Employers Prohibit the Use of Cannabis During Meals or Breaks?

Yes. Workplace consumption is not allowed by law, whether on-site or elsewhere. This ban extends to meals and breaks, whether paid or unpaid. The rule applies as break time falls under “work hours.”

Can Employers Prohibit Cannabis Use When an Employee is On-Call?

Yes, like other off-the-clock breaks, on-call shifts also fall under “work hours,” as the person is expected to be ready to work if needed. 

Can Employers Require Employees to Agree Not to Use Cannabis as a Condition of Employment?

No. Section 201-D of the state Labor Law prohibits employers from requiring employees to waive their rights as a stipulation to be hired or remain employed.

Can Employers Prohibit Employees From Using Cannabis at Home if They Work From Home?

No. Under New York's labor law, an employee's private home is not considered a workplace. However, employers can prohibit remote workers from using cannabis during working hours.

Can Medical Marijuana Patients be Fired in New York?

New york state employee rights

Medical marijuana users employed in New York were already protected under the Compassionate Care Act, which was implemented in 2016. Certified patients are considered to have a disability under the New York State Human Rights Law.  The exceptions to this policy are similar to those described above, though.

  • Marijuana use can still be prohibited in the workplace or during company time.
  • The employer isn't required to violate federal laws regarding drug testing or drug use.
  • Employers aren't required to make exceptions for medical cannabis use if it would cause them to lose a federal contract or federal funding.

In this case, it's important for employers to remember that signs of impairment may actually be due to a disability, not cannabis use. Even if the employer was unaware of the disability, they would be prohibited from using such signs as a basis for dismissal or discrimination.

Can Employers Be Sued for Continuing Cannabis Drug Tests?

In most cases, yes. Besides the few exceptions, most employers are now prohibited from citing cannabis use or drug screens for cannabis use as a means of refusing someone work. The 2021 Amazon class action suit serves as a recent reminder of the risks employers face if continuing to screen employees for cannabis. 

Getting a Job with a Medical Marijuana Card in New York

Most New Yorkers are protected from employment bans or invasive cannabis drug tests with the regulations in place, and they shouldn’t have an issue getting a job while holding their medical cannabis card. Still, beware of the exceptions and the rules regarding on-hours consumption. 

Getting your medical marijuana card in New York has never been easier! 

The information in this article and any included images or charts are for educational purposes only. This information is neither a substitute for, nor does it replace, professional legal advice or medical advice, diagnosis, or treatment. If you have any concerns or questions about laws, regulations, or your health, you should always consult with an attorney, physician or other licensed professional.

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