New York Employers Banned From Drug Testing For Pot

ALBANY, NY — New York employers may no longer test most employees for marijuana use based on a new state law legalizing adult use of the drug.

The state’s Department of Labor this month released a FAQ guidance pertaining to the state’s legal use of cannabis by adults 21 or older. According to the guidance, employers are prohibited from discriminating against an employee for using “cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.”

Employers also may no longer test employees who reek of marijuana because that “is not evidence of articulable symptoms of impairment,” according to the DOL.

Commenting on the new guidance, Greg Giangrande, Chief Human Resources Officer with the company Ellucian, told Fox 5 New York: "As if the workplace weren't complicated enough with the existing employment laws that you have to navigate and then COVID and vaccine mandates added a whole new complexity. And now this in New York. It makes it really difficult.”

Employers retain the right to ban employees from possessing pot on the employer’s property, and can still intervene if they suspect the employee is impaired by using marijuana while working. An employer can also still take action when an employee’s performance of duties declines or interferes with state and federal safety and health laws.

Exceptions to the new rules include employees in specific positions who are subject by federal or state laws to take drug tests. According to the guidance, an employee cannot test an employee suspected of using pot whether or not such testing is prohibited under federal law, but "an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position." Drivers of commercial vehicles are one example of employees subject to mandatory drug testing.

In March, New York state legalized recreational marijuana use and possession of up to three ounces of pot outside the home and up to five pounds at home. But use remains illegal in the workplace and to people under the age of 21.