New York just became the first US state to prohibit any employer from conducting pre-employment or random drug testing for cannabis.
Last week, the state Department of Labor (DOL) updated its regulations on workplace drug testing to reflect the state's new adult-use law, which took effect in April. Under these new rules, employers are no longer allowed to test current or prospective employees for cannabis use, with a few exceptions. Employers are also banned from taking action against employees for smelling like weed, and cannot force employees to promise not to use cannabis as a condition of their employment.
“Whether it's an employee or employer, they're just going to have to get adjusted to this,” said Derrick Hogan, partner at Tully Rinckey PLLC, to Spectrum News 1. “But eventually, as the law progresses and as New York opens up to not only you can possess but then you can purchase legally, I think we're going to see people start understanding more. Then one day, it's going to be like alcohol, where, you know, you can't use it at the job and it's illegal, but there's a fine line there.”
As always, there are a few exceptions to the new rule. Federal government agencies like the post office or the FBI may continue to test New York-based employees for weed, since marijuana is still federally illegal. State employers must also continue mandatory cannabis testing if required by law. Commercial truck drivers, airline pilots, and heavy machinery operators, for example, are required to submit to random testing for weed and other drugs under federal and state laws.
Employers are still allowed to prohibit the use of cannabis during work hours, including off-site lunch breaks, and may also discipline employees who bring weed to work. The new regulations also allow employers to drug test or discipline employees who are visibly stoned while at work. The DOL makes it clear that “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,” however.
“Employers are going to have to adjust [to] the new laws and be able to determine, 'Do I have enough to discipline this individual, because I think they're not performing their essential function of their job?'” Hogan explained to Spectrum News 1. “And employees, they have to understand, just because marijuana is legal now, that doesn’t just give them the right to come into the office and smoke, or even before, and come into work high.”
Several other adult-use states, including Nevada, Oklahoma, and Maine, have passed laws banning pre-employment drug screening for adult-use or medical pot users, but New York is the first state to entirely ban pot testing for both prospective and current workers. New York City also prohibited pre-employment drug testing for most employees last year, and Philadelphia, Washington DC, and other major cities have recently enacted similar rules.
But although more and more states and cities are banning employers from discriminating against cannabis users, California, Colorado, Illinois, and several other adult-use states still allow companies to fire people for consuming legal weed. Fortunately, a growing number of national employers are choosing to abandon workplace weed testing on their own. Earlier this year, Amazon ended pot testing for most of its employees, a move that may inspire other major corporations to follow suit.