It’s been two years since the Marijuana Regulation and Taxation Act legalized marijuana in New York State on March 31, 2021 and prohibited employers from drug testing for marijuana (for tests that are not federally-mandated). Because many employers still are confused about what New York law requires, here is a recap:
All Off-Duty Use of Marijuana Is Protected; Drug Testing For Marijuana Is Prohibited
New York’s Lawful Activities Law (Section 201-d of the New York Labor Law) provides that New York employers may not refuse to hire, employ, discharge, or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises and while not using the employer’s equipment or other property. As a practical matter, this makes it impossible for an employer to conduct marijuana drug testing because drug tests cannot detect current marijuana impairment. Although the New York Department of Labor issued guidance in October 2021 stating that employers may test for marijuana when there are “articulable symptoms of impairment,” the guidance went on to explain that employers may not take adverse employment actions based on a positive marijuana drug test result. As a result, there is no point in conducting marijuana drug testing even when there is reasonable suspicion.
The marijuana drug testing prohibitions in New York do not apply to drug testing that is mandated by federal law such as the regulations of the U.S. Department of Transportation, or drug testing that is required by a federal contract. Federal contractors should take note that the federal Drug-Free Workplace Act does not require any drug testing so that law alone is not sufficient to justify drug testing for marijuana in New York.
Employers May Prohibit On-Duty Use of Marijuana as Well as Impairment at Work
Employers still may prohibit the on-duty use and possession of marijuana as well as impairment at work. It is important to revise drug and alcohol policies to make it clear that marijuana may not be used at any time during work hours, even meal breaks and rest breaks, and may not be used on Company premises (e.g., the parking lot at lunch time).
Employers also do not have to tolerate marijuana impairment during work time but it is much harder to address now that marijuana drug testing no longer is permitted. Employers may conduct reasonable suspicion testing (for alcohol and drugs other than marijuana) but if the test is negative, the employer should discipline based on the observed impaired behaviors, if appropriate.
The Department of Labor guidance states that the smell of marijuana alone is not sufficient to indicate current impairment. As a result, employers must be careful not to discipline based on smell alone. Sending employees home to change their clothing may be appropriate for patient-facing and customer-facing positions.
Aren’t There Exceptions For Safety-Sensitive Jobs?
New York law makes no exceptions for safety-sensitive jobs or industries. Several states, such as Connecticut, have exceptions in their recreational marijuana laws to allow employers in dangerous industries to drug test safety-sensitive employees for marijuana (e.g., police officers, firefighters, health care workers, construction workers, drivers, manufacturing plant employees, etc.) New York State’s law contains no such exceptions. Employers should review their drug and alcohol policies carefully to ensure that they are complying with New York State law.