New York State bans most employers from drug testing on pot

The majority of New York employers are now banned from testing employees for off-the-clock drug tests for cannabis use. The New York State Department of Labor (DOL) released new guidelines on legalized recreational marijuana use and in the workplace, including new worker protection.

DOL published amendments to an existing labor law entitled New York Labor Law 201-D: Adult Cannabis in the Workplace, including specific guidelines for drug testing for cannabis in the workplace.

New York’s Adult Cannabis Legalization Act, passed last March, already bans most employers from acting against off-clock cannabis use. The New York Marijuana Regulation and Taxation Act (MRTA) was designed to create a legal industry that includes worker protection for law-abiding employees. In addition, New York City has banned pre-hiring drug testing in most situations, which went into effect last May.

The new guidance, abbreviated to a practical FAQ, makes it clear that off-clock cannabis use should be tolerated by employers in most situations. It defines mandatory pre-hiring drug testing for cannabis as “discrimination”.

“Discrimination prohibited” is the title of the introductory paragraph of the new guidelines.

“The MRTA amended Section 201-D of the New York Labor Code to clarify that cannabis used under New York State law is a legal consumer product,” the document said. “As such, 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 the employer’s equipment or property.”

According to the new guidelines, an employer may not test an employee for cannabis “unless the employer is entitled to do so under the provisions of the Labor Code Section 201-D (4-a) or other applicable laws”.

In addition, it appears that state officials have finally come to terms with the actual timeframe of the cannabis degradation. While a cannabis high only lasts for hours, cannabis metabolites remain in the body for weeks, sometimes even months, after consumption.

“No, a test for cannabis use cannot be used as a basis for an employer to conclude that an employee was impaired by cannabis use, as such tests do not currently show impairment,” says the document that answers a question about the FAQ.

Of course, workers cannot smoke cannabis around the clock and expect protection. Certain types of work with machinery and other hazards in the workplace require vigilance. “The employer is not prohibited from taking legal action against an employee if the employee is impaired by cannabis while at work.”

The fear of drug testing in New York

Drug testing is especially nerve-wracking for cannabis users because it makes it easier to discover cannabis over a long period of time. According to a growing body of research, drug testing is most likely not able to determine current impairment.

Researchers at the Australian Lambert Initiative for Cannabinoid Therapeutics at the University of Sydney found that the impairment of cannabis lasts for 3 to 10 hours and that drug testing for THC impairment is almost certainly in no way reliable.

It has a major impact on occupational safety and affects driving regulations.

Other studies support this data. A Canada-based study found that drug testing for THC impairment is inaccurate and needs improvement before we can really understand cannabis impairment while driving and before we can really determine who is impaired.

Meanwhile, some job searches only allow job searches that don’t include drug tests, forcing potential employees to disclose what substances get into their bodies. Phynally, an online resource started by entrepreneur Damian Jorden of Philadelphia, Pennsylvania, enables job seekers to search for jobs that don’t take a drug test. “We’re the LinkedIn for cannabis users,” Jorden, 35, told Philadelphia Magazine earlier this year.