by federal and state law (e.g., the NYS Human Rights
Law), even if such disability or condition is unknown to
the employer. Employers should consult with appropriate
professionals regarding applicable local, state, and federal
laws that prohibit disability discrimination.
For example, the operation of heavy machinery in an
unsafe and reckless manner may be considered an
articulable symptom of impairment.
What cannot be cited by an employer as articulable
symptoms of impairment?
Observable signs of use that do not indicate impairment
on their own cannot be cited as an articulable symptom
of impairment. Only symptoms that provide objectively
observable indications that the employee’s performance
of the essential duties or tasks of their position are
decreased or lessened may be cited. However, employers
are not prohibited from disciplinary action against
employees who are using cannabis during work hours or
using employer property.
Can employers use drug testing as a basis for an
articulable symptom of impairment?
No, a test for cannabis usage cannot serve as a basis for
an employer’s conclusion that an employee was impaired
by the use of cannabis, since such tests do not currently
demonstrate impairment. (For more information, see
section Drug Testing below).
Can I fire an employee for having a noticeable odor
of cannabis?
The smell of cannabis, on its own, is not evidence of
articulable symptoms of impairment under Labor Law
Section 201-D.
Do I have to fire an employee for using cannabis on the
job or for cannabis impairment on the job?
No, employers are permitted to take action under such
circumstances but are not required to do so.
Do I have to discipline, report, or fire an employee under
age 21 who uses cannabis on the job?
No, there is no legal requirement to do so in the
Labor Law.
Are employers required to hire an employee back who
was previously terminated for now legal cannabis use or
a related expunged crime?
No, the law does not require employers to rehire former
employees who were terminated due to cannabis use
prior to the legalization of cannabis.
What if my employee works remotely in another state
that uses dierent laws?
The MRTA and New York Labor Law Section 201-D
only apply to employees employed within the State of
New York.
Can a person use cannabis if they are on leave?
For purposes of the labor law, employers cannot prohibit
the use of cannabis while employees are on leave unless
the employer is permitted to do so pursuant to the
provisions of New York Labor Law Section 201-D(4-a).
USE AT WORK OR DURING WORK HOURS
Can employers prohibit use of cannabis during meal or
break periods?
Yes, employers may prohibit cannabis during “work hours,”
which for these purposes means all time, including paid
and unpaid breaks and meal periods, that the employee
is suered, permitted or expected to be engaged in work,
and all time the employee is actually engaged in work.
Such periods of time are still considered “work hours” if
the employee leaves the worksite.
Can employers prohibit use of cannabis during periods in
which an employee is on-call?
Yes, employers may prohibit cannabis during “work
hours,” which includes time that the employee is on-call or
“expected to be engaged in work.”
Can employers prohibit cannabis possession at work?
Yes, employers may prohibit employees from bringing
cannabis onto the employer’s property, including leased
and rented space, company vehicles, and areas used by
employees within such property (e.g., lockers, desks, etc.).
For remote employees, can employers prohibit use in the
“worksite”?
The Department of Labor does not consider an
employee’s private residence being used for remote work
a “worksite” within the meaning of Labor Law Section 201-
D. However, an employer may take action if an employee
is exhibiting articulable symptoms of impairment during
work hours as described above and may institute a
general policy prohibiting use during working hours.
Can employers prohibit use when the employee uses a
company vehicle?
Yes, employers are permitted to prohibit use in company
vehicles or on the employer’s property, even after regular
business hours or work shifts.