New Yorkers can no longer be fired for using marijuana while off the clock. Updated guidelines released by the state Department of Labor (DOL) in October stipulate that the detection of cannabis in a drug test is no longer sufficient grounds to penalize workers. Now, employers would need to demonstrate that marijuana was consumed during work hours, or that consumption affected performance.
The change helps to bring New York’s employment laws in line with its legalization of adult-use cannabis in April. The new DOL guidelines apply to public and private employees within the state. Federal government employees will not benefit from the change, however, and there are some other exceptions.
Employers can still discipline employees for cannabis use that’s in violation of state law, for example, or if the employer would lose a federal contract or funding as a result. So would a construction company receiving federal highway funds have to discriminate against cannabis users? It’s not entirely clear.
Employers can also test for cannabis, with potential penalties, in specific cases when it’s required by federal or state law. Commercial truck drivers, for example, are required to undergo mandatory testing.
If an employee “manifests specific articulable symptoms of cannabis impairment” which prevent them from doing their job in a safe and proper manner, that isn’t protected under the new guidelines. If you took a massive bong rip before arriving at your job as a crane operator, then crashed the machine into a building, you’d be in trouble. But a positive cannabis test alone wouldn’t qualify, the document makes clear, “since such tests do not currently demonstrate impairment.”
Another point to note is that signs of cannabis use—like red eyes—do not count as “impairment.” Neither does the odor of cannabis.
The guidelines don’t specify what “symptoms of impairment” means, so it would be left to the employer’s discretion. But the document does warn that impairment is not always caused by cannabis—it can be caused by a disability the employer is unaware of, say. Perhaps our hypothetical crane operator suffered from the sleeping disorder narcolepsy.
But what if both are true, and the person has narcolepsy and uses cannabis in their own time? It remains a gray area.
Another point to note is that signs of cannabis use—like red eyes—do not count as “impairment.” Neither does the odor of cannabis. And although employers have the right to fire you for using cannabis on the job, or if you are underage, they are not required to do so.
However, employers can prohibit possession of cannabis during work hours—including on your person or in workplace storage areas.
A Shameful Legacy of Employment Discrimination
When we think of the War on Drugs, we may picture armed police or planes spraying coca crops. But there are many less visible aspects of the drug war—and employers have played a huge role in enforcing prohibition in the workplace. A failed drug test is an easy excuse to terminate an employee (and perhaps shield yourself from liability in case an accident happens).
With cannabis specifically, it’s particularly disappointing that state-level medical or full legalization have often failed to protect workers who want to legally consume the drug. Leafly reports that prior to 2017, courts almost always sided with employers in cases where a worker was fired for legal cannabis use. Of the 36 states that have either legal medical or adult-use cannabis, only about a dozen offer worker protections, and these tend to be very weak.
Colorado doesn’t protect employees from termination, even for legal cannabis use off the job. State law specifies that employers can’t interfere with employees’ “lawful off-duty conduct.” But Colorado courts have said this doesn’t apply to cannabis use, which remains illegal under federal law.
California law also doesn’t protect workers from termination—although a bill introduced in February 2021 would prohibit discrimination against workers who simply test positive for cannabis.
Massachusetts doesn’t protect workers from termination for cannabis use off the job either. Since 2018, state Senator Jason Lewis (D-Winchester) has proposed to amend the law by prohibiting termination unless a person uses on the job or is impaired.
And Illinois is another state that doesn’t protect workers. Here, a poorly written law exasperates both workers and bosses by allowing employers to use “reasonable drug and alcohol testing” as part of a “reasonable workplace drug policy,” without making clear what “reasonable” means or what anyone’s rights are.
Is the Tide Turning?
New Jersey meanwhile provides similar worker protections to those just introduced by neighboring New York. Employers cannot fire you solely for cannabis use, but only if they show you were impaired or used on the job. New Jersey requires that in addition to a drug test, employers must have a certified “drug recognition expert” conduct a physical examination.
Other jurisdictions that protect workers who use cannabis include Nevada and the city of Philadelphia—the latter prohibits most employers from testing new hires for cannabis.
It does seem likely that going forward, workplace protections—like community reinvestment, automatic record expungement, and protections for both documented and undocumented immigrants—will increasingly be considered a necessary component of cannabis legalization measures.
Even at the level of US Congress, a budget committee went on the record in June 2021 stating that federal employers should not fire workers for use alone in cannabis-legal states. But the White House has yet to get on board.