New Guidance on Cannabis Drug Tests in New York State

Legal recreational marijuana use continues to shake up drug testing policies in the workplace. The state of New York recently joined the growing list of states that have legalized the recreational use of marijuana with the passage of the Marijuana Regulation and Taxation Act (MRTA).  The act, among other things, included amendments to the New York Labor Law.

Changes to the New York Labor Law

The amendments to the New York Labor Law Section 201-D now makes it unlawful, unless otherwise provided by law, for an employer to refuse to hire, employ or license, discharge from employment, or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:

• An individual’s legal use of consumable products or legal recreational activities, including cannabis in accordance with state law, outside of the employee’s work hours, off the employer’s property, and without the use of the employer’s equipment or property.

There are some exceptions.  According to New York Labor Law Section 201-D(4-a), an employer can take action specifically related to the use of cannabis if:

• The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate.
• The employer would be in violation of federal law.
• The employer would lose a federal contract or federal funding.
• The employee displays specific articulable symptoms of impairment while working that decrease the employee’s performance of their tasks or duties or interfere with the employer’s obligation to provide for a safe and healthy workplace as required by state or federal occupational safety and health law.

Additionally, the law states that employers are not in violation of the law if the employer takes action based on the belief that:

• The employer’s actions were required by statute, regulation, ordinance, or other government mandate.
• The employer’s actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract, or collective bargaining agreement.
• The individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency, or misconduct.

New Guidance on Cannabis Testing

In October 2021, the New York Department of Labor (NY DOL) issued guidance to “address some of the most common situations or questions in the workplace related to adult-use cannabis and the Marijuana Regulation and Taxation Act.”

The NY DOL guidance includes valuable information for employers regarding the amendments to New York Labor Law Section 201-D.  This includes guidance on drug testing employees.  According to the NY DOL guidance, an employer cannot test for cannabis, unless they are covered by one of the limited exceptions from New York Labor Law Section 201-D(4-a), listed above, or other applicable laws.  The guidance goes on to clarify that employers can drug test employees for cannabis if federal or state law requires drug testing or makes it a mandatory requirement.  However, “an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law.”

The guidance clarifies that both the MRTA and New York Labor Law Section 201-D apply to all public (state and local government only, the federal government, as an employer is exempted) and private employers in New York state, regardless of size, industry or occupation. They apply to all employees employed within the State of New York.  They do not apply to employees that work remotely in a different state, individuals that are not employees (e.g., students who are not employees, independent contractors, and volunteers), and employees under the age of 21, as cannabis use by individuals under the age of 21 is prohibited by New York state law.

You may want to review Section 201-D of New York Labor Law and the NY DOL guidance with your legal counsel to determine if you need to make adjustments to your drug testing policy. If you would like to add a drug testing package without cannabis, we can help. Please contact Verified Credentials support for assistance at 800.938.6090 or fill out this form.