New York Restricts Employers from Testing Employees for Marijuana

New Yorkers rejoice–you can smoke marijuana and still be eligible for employment!

Thanks to newly issued guidance by the state Department of Labor, New York is the first state in the country to prohibit employers from testing current and prospective workers for cannabis use.

So what does this mean for job seekers and employees? Let’s break it down.

Cannabis and the workplace

The New York State Department of Labor recently released guidance for employers regarding cannabis use. While some headlines claimed that employees would be able to smoke on the job or arrive at the office high, that’s not the case.

Here’s what New York’s guidance actually says:

“Employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without the use of the employer’s equipment or property.”

What does this mean for New York employees?

The good news is New York state recognizes their residents’ rights to consume cannabis outside the office. As a result, employers cannot drug test for cannabis as a contingency for employment. Additionally, they can’t require current staff to undergo testing indiscriminately–even if employees smell like cannabis at work.

The bad news is, this isn’t a carte blanche rule that allows New Yorkers to do whatever they want. While this document takes broad sweeping action to prevent cannabis testing, there are exceptions to the rule where employers can still test employees. It’s also important to note that this guidance only concerns cannabis use. Employers can still require a drug test to screen for narcotics and other illegal substances.

Exceptions to Cannabis Testing

The state recognizes that consuming cannabis is protected under the MRTA- with several contingencies:

  • The person must be over 21
  • Cannabis use must take place outside of company property
  • Employees must be off the clock while consuming
  • Staff cannot use any company equipment to consume cannabis

Employers can still ban cannabis during work hours for both onsite and remote employees. That means employees can still face the consequences for consuming cannabis during breaks (paid or unpaid) and storing cannabis on company property, like lockers.

The guidance also states that employers can require tests if the employee displays visible signs and symptoms of impairment that negatively affect performance.

This guidance doesn’t apply to every job or employer. For example, state and federal employees must still submit to mandatory drug testing.

While employees cannot be subject to drug testing just because their employer suspects they’re consuming cannabis, they can be mandated to take one if it’s a contingency of their position. Examples include commercial vehicle drivers, machine operators, post office workers, and police officers.

 FAQs About NY Cannabis Testing

Can I still be drug tested?

You can be tested for cannabis if:

  • Your employer is required to test for cannabis by federal law
    • This includes both federal positions and positions using federal funding or contracts.
  • You are visibly impaired at work with specific articulable signs and symptoms.
  • You are an independent contractor, intern, volunteer, or student.
  • You are under 21

You cannot be tested to:

  • Prove you were high at work
  • Complete the hiring process for a position that does not mandate drug testing as a contingency for employment

Can I smoke or use edibles at work?

You do not have the right to consume cannabis at work. If you are visibly high at work or bring marijuana onto company property, your employer can drug test and penalize you.

What positions will still be drug tested?

Federal positions, jobs related to federal funding or contracts, and positions where testing is a mandatory part of the job.

What if I test positive for cannabis?

It depends. If you’re going through the application process and test positive during a routine drug test, employers cannot use that to discriminate against you in the hiring process. However, if you exhibit articulable symptoms of impairment at work and test positive, you can still be subject to disciplinary actions.

What are specific articulable symptoms of impairment?

Unfortunately, the guidance does not give examples, so it’s left up to your employer’s discretion. However, smelling like cannabis alone is not a specific symptom of impairment.

What if my company isn’t based in New York?

All public and private companies that operate with employees in New York are subject to New York Labor Law, even if headquartered elsewhere (except for the federal government.)

 Can I refuse a drug test?

You can always refuse a drug test, but an employer can use that to discriminate against you in a hiring process. This guidance does not say employees cannot be drug tested, just that employers cannot deny you based on legal cannabis use.


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