Provided by: Jennifer Kirschenbaum, Esq.
January 17, 2023
One of my employees came to work smelling like pot. Can we randomly drug test employees? And, can we even fire someone for their use of marijuana with the new laws?
Short Answer: You can drug test, but you cannot fire for legal cannabis use. No, the Federal government has not acted on marijuana yet and interstate banking for cannabis companies is still prohibited. Have employee(s) sign a drug testing consent form.
Longer Answer: Since the legalization of marijuana the New York Labor Law has amended Section 201-d by stating: “2. [I]t shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: (b) an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property; or (c) an individual’s legal recreational activities, including cannabis in accordance with state law, outside wok hours, off of the employer’s premises and without use of the employer’s equipment or other property”
Pursuant to the new statute, an employer may terminate an employee for cannabis use where: "(i) the employer’s actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer’s actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency, or misconduct.” See https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf.
Without a written policy governing your practice's procedures, should the time come where we must address cannabis use, we may not have what we need to enforce conformity with a uniform policy, should one not exist.