New York State Shuts Down Worker Discrimination Against Cannabis Use 

Employees welcome the end of cannabis drug screenings in New York. Photo credits:Twenty20 photos.

In addition to adult-use cannabis, residents of New York are also welcoming the end of cannabis drug screenings.  

In March 2021, adult-use cannabis became legal in New York when lawmakers passed the Marijuana Regulation and Taxation Act (MRTA). While this law covered the production, distribution, and use of cannabis, it did not directly address workplace policies.  

In October 2021, the New York Department of Labor (DOL) released the Adult Use Cannabis and the Workplace New York Labor Law 201-D. The law addresses questions and situations in the workplace related to adult cannabis use and MRTA. 

Some of the topics that the labor law covers include human resource issues; workplace cannabis use; drug testing; and workplace policies. 

What Does This Mean for Employees?

The law permits cannabis use outside of work. However, employees must still abide by rules mandated by the employers during work hours.

According to MRTA and New York Labor Law Section 201-D, “an employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working.” 

While there is no list of impairment symptoms for cannabis, the law refers to them as “articulable symptoms.” So while employers may not have the ability to control cannabis use before or after work duties, they can still prevent a worker from performing during work hours if they find it appropriate. 

Under the ​​Labor Law Section 201-D, employees are no longer subject to drug testing. However, in some cases, if federal or state law requires drug testing, employees must still undergo a test. For example, employees may still be required to undergo drug screenings for Department of Transportation-regulated jobs. 

Response to 201-D Labor Law

According to Marijuana Moment, Faye Caldwell, an attorney and advisor specializing in drug testing laws says, “this is the first state in the nation to ever enter this [sort of labor law]. 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.”

Barry Sample, director of science and technology for the employer solutions division of Quest Diagnostics, tells SHRM that the rate of positive tests has increased 35% since 2010. Additionally, in legalized states, it has risen faster at 71% during that period.

Following New York State; New Jersey — which recently legalize adult-use cannabis, could promptly follow. 

Currently, New Jersey has similar laws surrounding cannabis use during work hours. For example, employers can prohibit or allow such use while employees are on the clock. According to an SHRM report on the New Jersey Marijuana Law, if signs of impairment show, employees are prompted to obtain the opinion of a certified workplace impairment recognition expert (WIRE) to determine further action. 

Industries Take Action

New York may be the first state to introduce such a labor law. But other companies  and industries have stopped drug testing for cannabis. In fact, several industries made changes in the workplace and adapted to new cannabis policies. One of these companies includes Amazon, which announced it stopped drug testing employees back in June 2021.

Amazon will only require drug testing for jobs regulated by the Department of Transportation, such as delivery truck drivers. 

According to NPR, “Amazon is also acting on the political level, throwing its weight behind the push to legalize marijuana in the U.S. and expunge criminal records for nonviolent marijuana-related convictions.”

Over the years, drug testing has become more of a controversial topic in the sports industry. For instance, in 2020, the NBA made a decision to stop drug testing for the 2021 season. 

According to Sport Illustrated, NBA spokesperson Mike Bass said, “Due to the unusual circumstances in conjunction with the pandemic, we have agreed with the NBPA to suspend random testing for marijuana for the 2020-21 season and focus our random testing program on performance-enhancing products and drugs of abuse.”

While this change is temporary, the NBA recognizes how common cannabis use is. As a result, the league may introduce a more permanent position later on. 

In the meantime, as industries in New York State continue to adapt to this new law; it seems like the end of drug screenings for cannabis may be near for employees throughout the nation.