July 31, 2023

Residents of New York now have various employment protections when using cannabis. However, the law provides several exceptions in its provisions. As such, you should know about these exceptions and more about the law if they apply to your situation.

In most cases, the New York Labor Law protects employees when using recreational cannabis in the private sector. The “private sector” means it’s a company not run by the government. You can use marijuana while off-duty, off your employer’s property, and not use your employer’s equipment.

You can review the limitations and exceptions to the New York Labor Law here. Otherwise, it prevents employers from the following actions based on marijuana use:

• Refusing to hire, license, or employ you
• Terminate your employment
• Discriminate against you in promotion, terms of employment, compensation, or privileges.

The New York Labor Law also protects job applicants who use cannabis for medical or recreational purposes. For example, most employers cannot require applicants to undergo marijuana testing. However, it does allow drug testing for the following exceptions:

• “Required by the U.S. Department of Transportation under 49 C.F.R. Part 40 or related state and local rules (e.g., flight crew and train dispatchers) 
• Required by the federal government as a condition of receiving a contract or grant; 
• Required by federal or state law ‘for purposes of safety or security;’ 
• A collective bargaining agreement includes terms related to pre-employment drug testing of job applicants; 
• The position falls into one of these categories: 
  • Police officers  
  • Peace officers 
  • Law enforcement or investigative positions at the N.Y.C. Department of Investigation          
  • Positions covered by New York City Building Code § 3321, which covers certain workers at building sites  
  • Positions covered by New York Labor Law § 220-h, which covers certain workers at public work sites 
  • Positions requiring a commercial driver’s license 
  • Positions supervising or caring for children 
  • Positions supervising medical patients”

Cannabis users have received many workplace protections. One such protection prevents most private sector employers from conducting pre-employment drug testing for cannabis. However, the law does not prevent employers from banning certain conduct due to marijuana use. Employers can still discipline or terminate you in the following situations:

• “An employer must take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate;
• The employer would violate 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;
• 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.”

Should you use marijuana, review your company’s policies to ensure you understand what your employer can and cannot do. Consider asking potential employers about their pre-employment drug screenings before applying for jobs. Finally, you should run a self-background check before applying for jobs or promotions. A self-check informs you what employers could see in your background checks, preparing you to explain any negative information.

Try running a self background check today and give yourself a head start on your next job opportunity.

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