The guidance states that the use of cannabis is legal under the Marijuana Regulation and Taxation Act (MRTA), which was signed into law by former New York Gov. Andrew Cuomo in June.
Under the NYSDL guidance, "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 the use of the employer's equipment or property.” However, employers can still ban the use of cannabis during "work hours" or the possession of the substance at work.
Marissa Mastroianni, an attorney from the Cannabis Law Group at Cole Schotz, told Cannabis Business Times and Cannabis Dispensary that the NYSDL’s guidance is "precedent-setting."
"This is really the first state to ban altogether testing for cannabis use unless in very limited circumstances," Mastroianni said. "This is definitely big news for any employer that has employees in New York state because you don't just have to be a New York employer to be covered by this."
The new law applies to anyone employed in the state of New York. Whether someone is an out-of-state employer that has an office in New York, or if they have remote workers in the state, they must comply with the new guidance, she said.
However, the law does not apply to a select group of people, which are listed in the guidance as follows:
students who are not employeesindependent contractorsindividuals working out of familial obligationvolunteersemployees under the age of 21, as individuals must be 21 years and older to consume cannabis in New York"An employer is exempted from this prohibition of testing for cannabis use if it would require them to violate an affirmative federal law that says employees in this category need to be tested for cannabis use," Mastroianni said. "So, for example, that's people with a commercial driver's license. They are governed by the Department of Transportation regulations, which explicitly [requires] testing for cannabis use. So, the employers are explicitly exempted from all this."
However, just because the federal law requires that a specific group of employees be tested for cannabis, employers are not allowed just to go ahead and test the employees under the guidance.
"There has to be an affirmative duty on the employer's end to test under federal law for them to be included in the exemption," she added.
Aside from this, employers are also permitted to drug screen their workers for cannabis under these specific reasons: The employer would lose a federal contract or federal funding; The employee shows symptoms of cannabis impairment while working that decreases or lessens their performance to complete duties or tasks or interferes with the employer's obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.
"So, just smelling as though you may have just used cannabis is not enough [for employers to conduct a drug screening] because the smell alone doesn't indicate that you can't do your job, you can't perform your duties, or that you are impinging upon a safe and healthy workplace," Mastroianni said. "So, what I would suggest to employers, is that anyone who is tasked with the workplace safety policy and enforcement of that policy definitely needs to get trained on how to detect what real-time cannabis intoxication looks like, other than the stereotypical smell and red eyes."
Mastroianni said this guidance will be difficult for employers genuinely concerned about cannabis usage amongst their employees and suggests they immediately stop testing for cannabis to become familiar with the guidance unless they are within one of the exceptions.
"Even before this was issued, a lot of New York decided to stop testing for cannabis altogether when cannabis was legalized recreationally. So, some employers quite frankly don't care anymore because it is a legal substance now in New York," she said. "But the employers that are not as progressive in that sense definitely need to be aware of this."
Mastroianni said it's uncertain whether other states will follow suit but said it's likely as New York is typically a trendsetter for employment laws and regulations.
"There's going to be a wait-and-see approach to see how this all works out in New York," she said. "New York is a trendsetter, in a lot of different respects, that's for sure. So, I guess it remains to be seen whether it's going to be trend-setting on this front as well."
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