Marijuana drug testing is now illegal in most New York state workplaces

Millions of New Yorkers no longer have to worry about getting hot on a weed test.

Most New York workers are now free to hit the grass after a long day at work. In response to the state’s legalization of marijuana, the New York Department of Labor amended Labor Act 201-D and issued a recommendation earlier this week on “Adult Use of Cannabis and in the Workplace.”

The amended law states that all public and private employees (aged 21 and over) can legally use cannabis without fear of discrimination in the workplace. The new rules apply to all workers, regardless of nationality or immigration status. There are some exceptions for certain professions such as commercial truck drivers.

This week’s action stated that “cannabis used in accordance with New York State law is a legal consumer product.”

“As such,” the recommendation says, “employers are prohibited from discriminating
against employees for the employee’s cannabis use outside of the workplace, outside of working hours and without using the employer’s equipment or property. ”

This is the strongest legal protection available to cannabis users in any state. It is now illegal to discriminate against legal cannabis users in New York.

Section 201-D was adapted to the Marijuana Regulation and Taxation Act, which legalized the possession and use of cannabis for adults across the country on March 31, 2021.

Would you like to smoke a joint after work? Continue. It is now illegal for most New York state employers to test or punish you for doing this. (AdobeStock)

When can a New York employer take a drug test for cannabis?

Under Subsection 4-a of Section 201-D, an employer is still required to prohibit conduct and take action under state or federal mandates relating to cannabis. Jobs can also prohibit the use of workers in accordance with existing ordinances, regulations, or laws.

That means New Yorkers who are federally required to test cannabis, such as commercial vehicle drivers, are still banned.

Government employees like transit workers, firefighters, and NYPD officials are also excluded from the fun.

When the ban ended in March, the NYPD warned police not to light up in an official memo. The notice stated: “All existing patrol procedures in relation to [marijuana] The ban and drug screening procedures remain in force. “

An NYPD spokesman confirmed to the New York Post this week that despite the issue of 201-D, officials are still banned from using cannabis in their spare time.

Police have used the cannabis ban as an excuse to harass and arrest black and brown communities for decades. Despite the end of the New York ban, NYPD officials are still not allowed to use cannabis in their spare time. (AdobeStock)

When can employers take action under labor law?

In some cases, an employer can take action or prohibit cannabis-related behavior.

For example, if the employer loses a federal contract or funding due to use by the employee, they have the right to act.

An employer can also take action during working hours if an employee shows understandable symptoms of cannabis impairment in the workplace.

In New York, the smell of weed is no longer enough to warrant drug testing on employees. (AdobeStock)

What are articulable symptoms of cannabis impairment?

There is currently no specific list that defines the symptoms of cannabis impairment. There is also no reliable test that can prove impairment from cannabis use.

Law 201-D defines symptoms as “noticeable” when an employee interferes with state or federal work safety laws. This includes being careless or dangerous at work, or failing to perform on assigned tasks.

All in all, a noticeable smell of cannabis is not a valid symptom, according to the DOL.

Again, employees are not allowed to use it at all during working hours. However, the new law gives employers the right to prohibit on-call or remote work.

The new law gives employers the right to ban cannabis use during periods when an employee is considered “on call”. (AdobeStock)

What about coffee breaks, lunch breaks, or approved vacation?

An employer can prohibit the use of cannabis during breaks, even if the employee is not at work during the break. Because breaks are still counted as working hours.

Employers can also ban the possession of cannabis in the workplace. However, as long as an employee complies with all other requirements of 201-D, they can freely consume cannabis during their vacation or outside of work hours.

Christopher Minaya

Christopher Minaya has written for XXL, Hot 97, In Flex We Trust, and more. He reports on cannabis trends on the east coast to humanize flowering.

Show article by Christopher Minaya

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