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Lately, the number one question we have been receiving at the Current Consulting Group is this: “Is it now illegal to test for marijuana in New York?”

The answer is: “No, but…”

Spring 2021 brought about the legalization of recreational cannabis for individuals 21 and older in the state of New York. “The Marihuana Regulation and Taxation Act” (the Act) was immediately effective and left a lot of unanswered questions on the subject of workplace drug testing for marijuana. The state Department of Labor more recently issued Guidance to provide clarification regarding drug testing and the legal use of cannabis.

First, What Does the Act Say?

The Act does not limit an employer’s ability to enact and/or enforce policies pertaining to cannabis in the workplace. Generally, employers cannot refuse to hire, employ, or license someone based solely on their legal use of marijuana. Employers also cannot discharge or otherwise discriminate against an individual because of their use of any legal products and/or their legal recreational activities, including cannabis use, when done in accordance with state laws. This applies if the individual uses cannabis prior to or after work hours and off the employer’s premises without the use of the employer’s equipment or other property.

Under the Act, employers can take action pertaining to cannabis use under the following circumstances:

• If the employer’s actions were required by state and/or federal law, statute, regulation, ordinance, or mandate.
• If an employee is impaired by cannabis use. To act based on impairment, the employee must manifest specific, articulable symptoms while working that decrease or lessen their performance of duties or tasks related to their position.
• If said articulable symptoms interfere with the employer’s obligation to provide a safe and healthy workplace that is free from recognized hazards as required by the state and federal law.
• If not taking action would require the employer to commit an act that would cause them to be in violation of federal law or would result in loss of a federal contract or funding.

Second, What Does the DOL Guidance Say?

In October 2021, the New York Department of Labor (DOL) issued a document, Adult Use Cannabis and the Workplace: New York Labor Law 201-D (the Guidance), that was intended to provide clarification pertaining to recreational cannabis and the workplace. The Guidance pertains only to recreational cannabis use and does not apply to medical cannabis situations.

Pertaining to impairment, the Guidance states the following:

• Employers can take employment action against an employee if the employee is impaired by cannabis at work.
• Impairment means that the individual in question manifests specific articulable symptoms of impairment that decrease or lessen job performance or interfere with the employer’s obligation to provide a safe and healthy workplace.
• Neither the Act nor the DOL Guidance provides a list of symptoms of impairment. Rather, employers should look for symptoms that are objectively observable indications that the employee’s performance is decreased.
• “Observable signs of use that do not indicate impairment on their own cannot be cited as…articulable symptoms of impairment.”
• Further, the Guidance states that an employer cannot use a drug test as the basis for their determination that an employee was/is impaired by cannabis.

Pertaining to cannabis use at work, the Guidance states:

• Employers cannot prohibit employees on leave from using cannabis unless the Act specifically states that they can.
• Employers can prohibit all cannabis use at work or during work hours, including if the employee leaves the worksite but is still on the clock or if the employee is on call.
• Cannabis possession can be prohibited in the workplace.
• Employers cannot prohibit remote employees from using cannabis in their private residence; however, employers may take action if a remote employee is exhibiting articulable symptoms of impairment during work hours and may have a general policy prohibiting use during work hours.

Employers cannot require employees or applicants to promise or agree to abstain from cannabis use as a condition of employment.

Pertaining to policies and drug testing, the Guidance states:

• If an employer has an existing drug-free workplace policy that prohibits cannabis use, the policy must be amended to reflect the conditions of the Guidance (unless an exception applies under the Act.
• Employers cannot test for cannabis unless they are permitted to do so pursuant to the Act (section 4-a) or by other applicable laws.
• Employers cannot test for cannabis merely because it is allowed and not prohibited under federal law.
• Employers can drug test their employees for cannabis if federal or state law requires drug testing or makes it a mandatory requirement of the position (e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with DOT regulations, etc.).

Additionally, the Guidance clarifies that the Act applies only to employees employed within the state of New York. Both public and private employers in the state of New York are covered under the Act.

So, Can Employers Test for Marijuana In New York?

New York employers can still test for marijuana but not as liberally as before the state’ DOL Guidance was issued. It is not accurate to say that all testing for marijuana is prohibited, but pre-employment and random testing for marijuana will be very restricted going forward, limited to government-mandated testing circumstances such as the U.S. Department of Transportation, as an example.

Employers will have a little more latitude when it comes to reasonable suspicion and post-accident testing for marijuana but, again, with limitations. Additionally, employers will be limited in what they can do with a positive result. The Guidance seems determined to prohibit adverse employment action based solely on a positive marijuana drug test result except when required as part of a state or federal law.

The bottom line? Employers still have the right to maintain a drug-free workplace program that prohibits employees from being at work or on the job while impaired by marijuana, from possessing marijuana in the workplace, and from using marijuana while on the job.

What’s Next?

Employers should become familiar with the Act and the new DOL Guidance, and work with a policy expert from the Current Consulting Group to review and update their drug-free workplace policies to ensure complete compliance. (To read the full text of the Guidance, visit the following page: https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf.)

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

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