Millions of New Yorkers no longer have to worry about popping hot on a weed test.
Most New York workers are now free to hit the weed after a long day’s work. In response to the state’s legalization of marijuana, the New York State Department of Labor amended Labor Law 201-D and published an “Adult Use Cannabis and the Workplace” advisory earlier this week.
The amended law states that all public and private employees (age 21 and older) can lawfully use cannabis without fear of workplace discrimination. The new rules apply to all workers regardless of citizenship or immigration status. There are some exceptions for specific jobs like commercial truck drivers.
This week’s action noted that “cannabis used in accordance with New York State law is a legal consumable product.”
“As such,” the advisory stated, “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 use of the employer’s equipment or property.”
That’s the strongest legal protection offered to cannabis consumers in any state. It’s now illegal to discriminate against legal cannabis consumers in New York.
Section 201-D was amended to fit the Marijuana Regulation and Taxation Act, which legalized the possession and use of cannabis for adults statewide on March 31, 2021.
When can a New York employer drug test for cannabis?
According to subsection 4-a of Section 201-D, an employer is still required to prohibit conduct and take action on the grounds of state or federal mandates about cannabis. Jobs can also prohibit worker use in accordance with any existing ordinance, regulation, or statute.
That means New Yorkers who are required to take cannabis tests by federal law, like commercial vehicle drivers, are still prohibited. Government employees including transit workers, firefighters and NYPD officers will also be left out of the fun.
When prohibition ended in March, the NYPD warned cops not to light up in an official memo. The notice read, “All existing patrol guide procedures regarding [marijuana] prohibition as well as drug screening procedures remain in effect.”
An NYPD spokesperson confirmed with The New York Post this week that despite the issuing of 201-D, officers are still not allowed to use cannabis in their off time.
When can employers take employment action?
An employer can take action or prohibit cannabis-related conduct in a few instances.
For example, if the employer stands to lose a federal contract or funding because of employee use, it has the right to act.
An employer can also take action during work hours if an employee is exhibiting articulable symptoms of cannabis impairment on the job.
What are articulable symptoms of cannabis impairment?
At the present time, there is no specific list defining cannabis impairment symptoms. There is also no reliable test that can demonstrate impairment due to cannabis use.
Law 201-D defines symptoms as “noticeable” if an employee is impeding state or federal workplace safety laws. That includes being careless or perilous while working, or showing diminishing performance of assigned tasks.
All things considered, a noticeable odor of cannabis is not a valid symptom, according to the DOL.
Again, employees aren’t allowed to use during work hours in the first place. But the new law will give employers the right to prohibit use during on-call or remote work.
What about during coffee breaks, lunch breaks, or approved leave?
An employer may prohibit the use of cannabis during breaks, even if the employee is not at the workplace during the break. That’s because breaks are still regarded as work hours.
Employers can also prohibit the possession of cannabis at work. But as long as an employee remains in compliance with all other requirements of 201-D, they can freely use cannabis while they are on leave or off the clock.