October 22, 2021

Exceptions to Recent New York Guidance Restricting Workplace Testing for Marijuana

By NDASA

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New York State’s Department of Labor this month released FAQ guidance pertaining to the state’s legal use of cannabis by adults 21 or older. According to the guidance, employers are prohibited from discriminating against an employee for using “cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.”

While the guidance received much media attention this week, reports have neglected to explain the important exceptions to the law. It is critical for professionals in the drug and alcohol screening industry and New York employers to understand that while the law has severely restricted and limited workplace testing for marijuana, it has NOT “banned” all testing as media reports suggest.

The labor code states the following:

“Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:

  b. an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property;

  c. an individual’s legal recreational activities, including cannabis in accordance with state law, outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property;”

However, there are limited but clear exceptions to the law and the labor department guidance. These include situations:

(1) where drug testing is federally or state-mandated for employees in certain positions (e.g. safety-sensitive employees regulated by the U.S. Department of Transportation);

(2) where an employee is demonstratively impaired and there is reasonable suspicion that the employee is under the influence so that it interferes with their job performance (smelling like marijuana or having blood-shot eyes does not count.);

(3) where the employer is following an established workplace drug testing policy, substance abuse program or bargaining agreement.

(4) where employee use would put health and safety at risk

(5) where an employer would be breaking state or federal laws if they didn’t test.

In short, if your business is state or federally regulated and you are required to maintain compliance with a state or federally mandated drug testing program, you, as the employer, must continue with all required testing, even if you are located in New York.  

The guidance also makes clear that an employer is not required to allow the actual consumption or possession of cannabis on company premises, during break periods, if an employee is about to start work or is on call. Moreover,

nothing in the guidance prevents employers from taking action against employees whose marijuana use is in direct conflict with the company’s business interests.

Exceptions

The language regarding exceptions in the labor code is as follows:

  “4. 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.

  4-a. Notwithstanding the provisions of subdivision three or four of this section, an employer shall not be in violation of this section where the employer takes action related to the use of cannabis 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; 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.”

The labor department issued its guidance in response to the many employer questions about workplace drug testing after New York legalized recreational marijuana use and possession in March.