Updated: Nov 16, 2021
Employers may still ban the use of cannabis on the job or the possession of the substance at work.
The New York State Department of Labor (NYSDL) recently issued guidance prohibiting New York employers from drug screening most workers for cannabis.
The guidance states that the use of cannabis is legal under the Marijuana Regulation and Taxation Act (MRTA), which was signed into law by former New York Gov. Andrew Cuomo in March.
Under the NYSDL guidance, "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.” However, employers can still ban the use of cannabis during "work hours" or the possession of the substance at work.
Marissa Mastroianni, an attorney from the Cannabis Law Group at Cole Schotz, told Cannabis Business Times and Cannabis Dispensary that the NYSDL’s guidance is "precedent-setting."
"This is really the first state to ban altogether testing for cannabis use unless in very limited circumstances," Mastroianni said. "This is definitely big news for any employer that has employees in New York state because you don't just have to be a New York employer to be covered by this."
The new law applies to anyone employed in the state of New York. Whether someone is an out-of-state employer that has an office in New York, or if they have remote workers in the state, they must comply with the new guidance, she said.
However, the law does not apply to a select group of people, which are listed in the guidance as follows:
students who are not employees
individuals working out of familial obligation
employees under the age of 21, as individuals must be 21 years and older to consume cannabis in New York
"An employer is exempted from this prohibition of testing for cannabis use if it would require them to violate an affirmative federal law that says employees in this category need to be tested for cannabis use," Mastroianni said. "So, for example, that's people with a commercial driver's license. They are governed by the Department of Transportation regulations, which explicitly [requires] testing for cannabis use. So, the employers are explicitly exempted from all this."
However, just because the federal law requires that a specific group of employees be tested for cannabis, employers are not allowed just to go ahead and test the employees under the guidance.
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(Source: Cannabis Business Times)