The New York State Department of Labor (NYSDL) recently issued guidelines 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), which was enacted in March by former New York Governor Andrew Cuomo.
According to NYSDL guidelines, “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 really the first state to ban testing for cannabis use altogether, except in very limited circumstances,” said Mastroianni. “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 with an office in New York or if they have remote workers in the state, they will have to 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 is exempt from this cannabis test ban if they violate federal law that requires employees in that category to be tested for cannabis use,” Mastroianni said. “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 supervision.
“The employer must have a positive audit requirement under federal law in order to be included in the exemption,” 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 the performance of duties or tasks, or interferes with the employer’s obligation to provide a safe and healthy workplace as required by 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, 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, who is in charge of the occupational safety guideline and its enforcement, must definitely be trained in how to recognize cannabis poisoning in real time, apart from the stereotypical smell and red eyes. “
Mastroianni said these guidelines will be difficult for employers who are genuinely 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 that was enacted, 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 also point the way in this regard.”