The New York State Department of Labor (NYSDL) recently issued a policy prohibiting New York employers from testing most workers for cannabis.
The guidelines state that cannabis use is legal under the Marijuana Regulation and Taxation Act (MRTA), signed by former New York Governor Andrew Cuomo in March.
According to the NYSDL Policy, “Employers are prohibited from discriminating against workers based on the worker’s cannabis use outside of the workplace, outside of working hours, and without the use of employer’s equipment or property”. However, employers can prohibit the use of cannabis during “working hours” or possession of the substance in the workplace.
Marissa Mastroianni, an attorney with the Cannabis Law Group at Cole Schotz, told the Cannabis Business Times and Cannabis Dispensary that the NYSDL guidelines were “unprecedented.”
“This is truly the first state to ban testing for cannabis use altogether, unless very limited circumstances require,” Mastroianni said. “This is definitely big news for any New York state employer because you don’t have to be just a New York employer to be covered.”
The new law applies to anyone who works in New York State. Whether someone is an out of state employer who has an office in New York, or if they have remote workers in the state, they must adhere to the new guidelines, she said.
However, the law does not apply to a select group of people who are listed in the guidelines as follows:
- Students who are not employees
- independent contractors
- People who work out of family obligations
- Employees under the age of 21, as individuals must be 21 or over to use cannabis in New York
“An employer would be exempt from this ban on cannabis use testing if they violated federal law that requires employees in this category to be tested for cannabis use,” said Mastroianni. “These are, for example, people with a commercial driver’s license. They are subject to the regulations of the Ministry of Transport, which expressly [requires] Test cannabis use. The employers are therefore expressly excluded from all of this. “
But just because federal law requires a certain group of workers to be tested for cannabis, employers cannot simply test workers under guidance.
“The employer must have a positive audit requirement under federal law in order to be included in the exception,” she added.
That being said, employers are also allowed to screen their workers for cannabis for the following specific reasons: the employer would lose a federal contract or federal grant; The employee exhibits symptoms of cannabis impairment while at work that diminishes or diminishes their performance in performing duties or tasks, or interfering with the employer’s obligation to provide a safe and healthy workplace under state and federal occupational safety laws.
“Well, just smelling like you’ve just used cannabis isn’t enough [for employers to conduct a drug screening] because the smell alone does not indicate that you cannot do your job, you cannot perform your duties, or that you are interfering with a safe and healthy workplace, “said Mastroianni.” So what I would suggest to employers is that everyone, in charge of the workplace safety policy and its enforcement, definitely needs to be trained to see what cannabis poisoning looks like in real time, apart from the stereotypical smell and red eyes. “
Mastroianni said these guidelines will be difficult for employers who are seriously concerned about their employees’ cannabis use, and suggests that they stop cannabis testing immediately to familiarize themselves with the guidelines unless they drop under one of the exceptions.
“Even before this was even published, many New Yorkers decided to stop cannabis testing altogether when recreational cannabis was legalized. So, honestly, some employers don’t care anymore because it’s a legal substance in New York now, ”she said. “But employers, who are not that progressive in that sense, definitely need to be aware of this.”
Mastroianni said it was uncertain whether other states would follow suit, but said it was likely because New York is typically a trendsetter in labor laws and regulations.
“There will be a wait and see approach to see how it all works in New York,” she said. “New York is a trendsetter in many ways, that’s for sure. So it remains to be seen whether it will lead the way in this respect as well.”