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Many companies test for drug use: how does this work for cannabis, traces of which remain in the bloodstream for up to four weeks from consumption? Consumption may have occurred outside of work hours, in the employee’s personal time.

New York, which has just legalized medicinal and recreational cannabis, has an off-duty conduct law prohibiting employers from acting against employees for lawful activity done while off the clock. So, what does this mean?

New York Anti-Employee Discrimination

New York has a law barring employment discrimination against employees for various lawful activities performed outside the job, including political activities (like running for office or campaigning on behalf of a candidate), recreational activities, and the consumption of certain legal products.

Amendments to the off-duty conduct law cover 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. Additionally, consumption must be off the employer’s premises and without the use of the employer’s equipment or other property.

The amended off-duty conduct law does carve out circumstances under which an employer would not be in violation. Exceptions include:

• Situations when “the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate,”
• “If the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.” 
• The employee’s pot-induced side effects “interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law.”

For instance, drivers or warehouse workers whose cannabis use may diminish their work abilities or affect safe vehicle operation.

Complications With The Amended Off-Duty Conduct Law

This could lead to some complicated scenarios.

Employers are still able to implement and administer drug-free workplace policies, but the administration of these policies is more complicated given the wording of the amendments.

Employers cannot discipline (e.g., terminate) an employee simply because they used cannabis before they started the workday. However, they can do so if the employee is ‘impaired’ by its use during working hours. And here the law attempts to define ‘impairment.’

“the employee manifests specific articulable symptoms while working that decrease or lessens the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law.” 

The statement still demands further clarification from the Department of Labor via regulations or other guidance, all of which are subject to interpretation by the courts.

Smoking Cannabis in Public

The new cannabis law was officially enacted last month in New York after Gov. Andrew Cuomo signed legislation on the final day of March. It marked a breakthrough for the state, which had seen other legalization efforts in recent years barely get off the ground.

Cuomo called it “a historic day in New York—one that rights the wrongs of the past by putting an end to harsh prison sentences, embraces an industry that will grow the Empire State’s economy, and prioritizes marginalized communities so those that have suffered the most will be the first to reap the benefits.”

The regulated pot market won’t be up in running in New York for at least a year, but because of the law, there are some immediate changes. New Yorkers are now, for example, free to smoke pot in public wherever smoking tobacco is also permitted.

We probably won’t see a resolution on the employer-employee terms for a bit. And it could easily set a precedent for evolving employer-employee relationships.

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