2021Drug Testing
Drug Testing

Written By ESR News Blog Editor Thomas Ahearn

The New York Department of Labor (DOL) has published new guidance entitled “Adult Use Cannabis And The Workplace – New York Labor Law 201-D” to address questions related to the Marijuana Regulation and Taxation Act (MRTA) and stated that employers in New York state cannot drug test most workers for the use of marijuana.

On March 31, 2021, New York Governor Andrew Cuomo signed the MRTA into law which immediately legalized marijuana use and possession for adults who are at least 21 years old or older and amended New York Labor Law Section 201-D. The guidance answered questions about the drug testing for marijuana, including:

  • Can an employer test for cannabis? No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.
  • Can an employer drug test an employee if federal law allows for drug testing? No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position.

The MRTA amended Section 201-D of the New York Labor Law by adding subsection 4-a to clarify that marijuana used in accordance with New York State law is a legal consumable product. The DOL guidance provides that employers may take employment action or prohibit employee conduct for marijuana use where:

  • An employer is/was required to take such action by state or federal statute, regulation, or 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, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties.
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.

The guidance addressed common situations or questions in the workplace related to adult-use cannabis and the MRTA but did not address the medical use of cannabis. For further assistance with New York Labor Law and the MRTA, please visit New York State’s Office of Cannabis Management’s website at https://cannabis.ny.gov/.

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