Can NY employers test for marijuana use? State issues new guidance

Sarah Taddeo
New York State Team

New York employers are not allowed to drug test their employees for cannabis except under limited circumstances, based on new guidance this month from the state Department of Labor

The state is currently laying the groundwork for the legal sale of marijuana after legalizing its recreational use in the spring. Only the use of cannabis among adults over 21 and the possession of up to three ounces is currently legal in New York. The sale and transportation of marijuana is still prohibited, and will be until at least 2022. 

The Department of Labor this week released guidance for employers based on the Marijuana Regulation and Taxation Act, or MRTA, which amended New York state Labor Law. 

Expungements, licenses, opt-outs:Here's what's next for NY's marijuana rollout

New York's cannabis board:Board holds first meeting, amends medical program

The guidance addressed how to handle drug testing, use of cannabis at work and cannabis impairment among public and private employees over 21, regardless of immigration or citizenship status. 

Marijuana and work: The main takeaway

New York is currently laying the groundwork for broader use and sales of marijuana after legalizing its recreational use in the spring.

The bottom line is that while employers are prohibited from conducting most drug testing and discriminating against workers who use cannabis outside of work hours, employers can regulate whether employees can use cannabis during work hours or on workplace property. 

How are NY employers allowed to address cannabis use?

Employers are allowed to prohibit the use and possession of cannabis during work hours and on work property, according to the Labor Department guidance.

This means during all parts of the work day, including lunch breaks or other breaks, even if the employee leaves the worksite. 

This also refers to all workplace-owned property, including vehicles, lockers, desks and owned or rented spaces. 

For employees who work from home, employers are allowed to prohibit the use of cannabis during work hours. 

According to the guidance, employers can also address employee conduct or take employment action regarding cannabis use among employees if: 

  • The employer is required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate 
  • The employer would be in violation of federal law if they didn’t address the conduct or take action
  • The employer would lose a federal contract or federal funding 
  • The employee, while working, manifests specific, articulable symptoms of cannabis impairment that decreased or lessened their ability to conduct their work duties.  
  • The employee, while working, manifests specific, articulable symptoms of cannabis impairment that interfered with the employer’s obligation to provide a safe and healthy workplace as required by state and federal law

What are ‘articulable symptoms’ of cannabis impairment?

The seedling stage of the marijuana life cycle lasts two to three weeks. In this Feb. 14, 2019 photo, cannabis seedlings grow under lights as part of a research project at the State University of New York at Morrisville, N.Y.

These are “objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened,” according to the Department of Labor. 

An example could be operating heavy machinery in an unsafe or reckless manner. Employers cannot cite signs of cannabis use that do not constitute impairment of tasks on the job — however, they can cite employees using cannabis during work hours or on work property.  

Employers are cautioned that such articulable symptoms may also be an indication that an employee has a disability that would protect them from discrimination under federal or state law, according to the Department of Labor.

What are employers prohibited from doing?

The most impactful change here is that employers are no longer allowed to test employees for cannabis, unless federal or state law dictates that a specific position or field requires drug testing, such as for drivers of commercial motor vehicles. 

Employers cannot regulate an employee’s cannabis use outside work hours or off workplace property, nor can they make an employee sign an agreement not to use cannabis outside of work as a condition of hire or continued employment. 

They also cannot use drug testing or the smell of cannabis as a reason to believe that an employee has been using cannabis during work hours or on work property. 

Sarah Taddeo is an enterprise reporter for USA Today Network's New York State Team. Got a story tip or comment? Contact Sarah at STADDEO@Gannett.com or (585) 258-2774. Follow her on Twitter @Sjtaddeo. This coverage is only possible with support from our readers. Please consider becoming a digital subscriber.