By guest contributors Bill Judge, JD, LL.M., and Nick Hartman of the Drug Screening Compliance Institute

State and local marijuana laws around the country are fast-changing and often confusing. In this article NDASA members Bill Judge and Nick Hartman take on recent legislation in New York City and New York State that illustrate just how closely those in our industry need to be paying attention. If you know that the laws are changing in your area, it worth your while to take the time to investigate as Bill and Nick have done in New York.

In New York, there are three laws – two state laws and one city ordinance in New York City – that limit employer action regarding marijuana use by employees. These laws are increasingly confusing to employers. In this article, we will attempt to clear the air. (Pun intended).

First, a bullet-point summary of the various laws impacting employers in the State of New York (for more detailed information, see attachments A & B):

New York State

New York City

Explanation

First, a disclaimer: everything said here is subject to court interpretation and future legislative change.

The key differences between State and New York City rules:

1.  The New York State rules apply to all applicants and employees; the rules in New York City only apply to pre-employment (applicants) testing for marijuana.

2. New York City’s rules provide a safety-sensitive position carve out; New York State rules do not offer safety-sensitive exemptions.

New York City Ordinance prohibits employers or their agents from requiring a job applicant to submit to a drug test “for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” The ordinance comes with some safety-sensitive exceptions[1].

New York State’s legislature recently passed the “Marijuana Regulation and Tax Act” (MRTA, S854-A; Assembly version A1248) which took effect upon the Governor’s signature on March 31, 2021.  This law consolidates the medical and adult use of marijuana laws in the State.  It creates the New York State Cannabis Control Board and the Office of Cannabis Management (OCM) within the division of alcoholic beverage control. The OCM has been directed to implement a regulatory framework for medical and adult use of cannabis & hemp within the State of New York.[2]

The new law (MRTA) prohibits employers in New York State from discriminating against any employee or applicant using cannabis off-site or off-premises, per state law.

MRTA amends Section 201-d of the New York Consolidated Laws related to labor, Adding a new paragraph (4-a). This new paragraph provides limited exceptions to the limitations for employers (in 201-d) based on the following:

(i) the employer’s actions were required by state or federal statute, regulation, ordinance, or other State or federal governmental mandate;

(ii) the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law; [emphasis added] or

(iii) the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

It’s interesting to remember that Section 4 of the law (which existed in Section 201-d previous to the latest amendments) states: “Notwithstanding the provisions of subdivision three of this section, an employer shall not be in violation of this section where the employer takes action based on the belief either that: (i) the employer’s actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer’s actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.” [emphasis added] The state legislature felt the need to add Section 4-a in this new law.

Commonly Asked Questions

It’s probably best to address the confusion in a Question and Answer format.

1. Can we still drug test for marijuana in New York?

ANSWER: YES!  It is essential to recognize that neither the State’s rules nor the New York City rules prohibit drug testing with the limited exception of New York City’s limitation of pre-employment marijuana testing of non-safety sensitive positions.

2. Can we still have a drug and alcohol policy?

ANSWER:  Yes!  New York State’s rules specifically state that employers can still act according to an established policy. New York City’s Ordinance does not address the question.

3. Can an employer take action if an employee violates the Company policy?

ANSWER:  Yes!  Existing State law (code section 201-d(4) – see Attachment B) states in part, “an employer shall not be in violation of this section where the employer takes action based on the belief either that:

(ii) the employer’s actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.”

The New York City Ordinance does not address this question.

4. How do these rules apply to a collective bargaining agreement?

ANSWER:  Both the State law and the New York City Ordinance address employee actions under a collective bargaining agreement (CBA).   The State Law protects employees’ activities unless those activities violate the rules of the CBA[3].  The City Ordinance provides similar language (§ 2. Section 8-107 of title 8, (b)(2)(D))[4]

5. Can New York employers continue to test for marijuana in Pre-employment, Random, Post-Accident, and Return-to-Duty instances?

ANSWER: Employers in the State of New York are prohibited from discriminating (hiring, firing, etc.) against an individual based on a positive drug test for marijuana – absent any signs or symptoms of marijuana use (i.e., Reasonable Suspicion). Pre-Employment and Random drug testing is not typically conducted based on signs and symptoms of substance use; therefore, employers should consider not testing for marijuana in these instances. For Post-Accident testing, screening for marijuana could be conducted if the signs and symptoms of use are established during the investigation.  For Return-to-Duty testing following a violation of company policy, employers could choose to test for marijuana; however, this issue is not addressed in the law and will be subject to court interpretation.

Employer Take Always

If you are trying to understand the rules in New York, you must look at the critical differences between the States anti-discrimination rules and the City’s prohibition of pre-employment marijuana testing. State rules do not prohibit testing – they prohibit discrimination.

Every employer in the State of New York and within the New York City limits must take a serious look at how these new rules impact the Company’s drug and alcohol testing program.  Drug screening policies must be reviewed and updated immediately. Employers should also review their internal procedures, job descriptions (especially for jobs deemed as safety-sensitive) and provide robust reasonable suspicion training for their managers or supervisors.

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The DSCI compliance team has conducted all of the research and is here to help your Company comply with these new rules! If you have any questions, JUST ASK!

www.AskBillJudge.com or 866-775-3724