Testing Employees for Marijuana is Illegal in NY


Testing Employees for Marijuana is Illegal in NY

The New York Department of Labor (DOL) recently published new guidance to answer questions about the Marijuana Regulation and Taxation Act (MRTA). The MRTA states that it is illegal for employers in New York to drug test their employees for marijuana. In the guidance — “Adult-Use Cannabis and The Workplace — New York Labor Law 201-D” — the DOL answers questions about drug testing and gives situations in which the employer can legally take action against the employees using marijuana.

Without the ability to drug test for marijuana, how can employers ensure their employees are not damaging the company with excessive drug use?

Permitted Employer Actions

Although the MRTA states that “New York employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without the use of the employer’s equipment or property,” employers can still take employment action or prohibit employee conduct in certain situations:

  • 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

Visible Impairment

Although an employer cannot discriminate against an employee for the use of cannabis, the DOL states that an employer can take action against an employee if they are impaired by cannabis while working and show visible signs of impairment that can be proven without a drug test. Impairment signs can include the decreased performance of duties or tasks, recklessly operating machinery, or putting other workers at risk of injury. Only symptoms that provide objectively observable indications that the employee’s performance is decreased may be cited, so this does not include drug testing or the presence of an odor of marijuana.

Drug Testing

The DOL states in the guidelines that “a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis since such tests do not currently demonstrate impairment.” Additionally, an employer cannot test for cannabis, even if federal law allows for drug testing unless federal or state law requires drug testing or makes it a mandatory requirement of the position, such as a commercial driver.

ClearStar and Drug Testing

When it comes to making sure your employees are FMCSA/DOT-compliant, ClearStar uses all of our resources to check on them. During pre-employment, ClearStar has full DOT support—including access to the Clearinghouse database—and a web-based management system that assists with carrying out a potential employee’s background check. With our resources, not only can we perform extensive background checks on potential employees, but we can also alert an employer of any past DOT violations, DUIs, and drug/alcohol test results.

We have the largest drug test collection site network with 9,000+ locations nationally and offer extensive drug tests, vaccinations, titers, physicals, and other services. We work with Abbott, LabCorp, and Quest to provide the best drug testing services and a mobile wallet pass with built-in reminders for LabCorp and Quest. For the peace of mind of employers, we offer real-time collection status updates for drug tests.

To place an order for a COVID-19 test or a drug test, contact the ClearStar Medical Information Services office at 321.821.3383 or info@medicalreviewoffice.com. To ask about background checks and other medical screening services, call +1.888.982.4648.


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