In a win for marijuana advocates in New York, the state’s Department of Labor (DOL) has announced new guidance where employers cannot drug test most workers for marijuana.
New York appears to be the first to explicitly bar employers from testing for THC at all, although with limited exceptions for certain categories of workers.
The legalization bill that former Gov. Andrew Cuomo (D) signed in March broadly prohibits discrimination against employees who use cannabis while off duty. The exceptions were for those who are regulated by the federal Department of Transportation.
New York’s DOL said in an FAQ published earlier this month that drug testing requirements for marijuana constitute discrimination.
“Can an employer test for cannabis? is answered by, “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?” has the answer: “No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law.”
Faye Caldwell, an attorney and advisor who specializes in drug testing laws, has said that DOL’s new rules on the issue represent a “seismic” policy change.
“This is the first state in the nation to ever enter this,” she said in a video with Marijuana Moment. “In most other states, there may be no ability to take action in many circumstances, but there was no prohibition on testing. So this will make some massive changes for employers who have employees in the state of New York and have drug testing policies.”
“Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited,” says the DOL.
Paul Armentano, deputy director of NORML, told Marijuana Moment that “random marijuana testing in the workplace, such as pre-employment drug screening, has never been an evidence-based policy. Rather, this discriminatory practice is a holdover from the zeitgeist of the 1980s ‘war on drugs.’”
