The majority of New York employers are barred from drug testing employees for off-the-clock cannabis use, according to new guidance. The New York State Department of Labor (DOL) released new guidance regarding legalized recreational marijuana use and the workplace including the new worker protections.

The DOL published amendments to an existing labor law entitled New York Labor Law 201-D: Adult Cannabis in the Workplace, including specific guidelines about drug testing for cannabis in the workplace.

New York’s bill to legalize adult-use cannabis, approved last March, already prohibits most employers from conducting against off-the-clock cannabis use. New York’s Marijuana Regulation and Taxation Act (MRTA) was intended to create a legal industry, which includes worker protections for law-abiding employees. Furthermore, New York City banned pre-employment drug testing in most situations, taking effect last May.

The new guidance, abbreviated in a convenient FAQ, makes it clear that off-the-clock cannabis use should be tolerated by employers in most situations. It defines mandatory pre-employment drug testing for cannabis as “discrimination.”

“Discrimination Prohibited,” the title of the opening paragraph of the new guidance reads.

“The MRTA amended Section 201-D of the New York Labor Law to clarify that cannabis used in accordance with New York State law is a legal consumable product,” the document reads. “As such, 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.”

Under the new guidance, an employer cannot test an employee for cannabis “unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.”

Furthermore, it appears that state officials have finally come to their senses regarding the actual time frame of cannabis impairment. While a cannabis high only lasts hours, cannabis metabolites remain in the body for weeks, sometimes months, after use.

“No, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment,” the document reads, answering a question on the FAQ.

Obviously, workers cannot smoke cannabis on the clock and expect protection. Certain jobs involving machinery and other workplace dangers require alertness. “An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working,”

The Dread of Drug Testing in New York

Drug tests are especially nerve-wracking for cannabis consumers, as it’s easier to detect cannabis for longer periods of time. More than likely, drug tests cannot determine current impairment, according to a growing body of research.

Researchers from Australia’s Lambert Initiative for Cannabinoid Therapeutics at the University of Sydney determined that cannabis impairment lasts 3-10 hours, and that drug testing for THC impairment is almost certainly not reliable in any sense.

It provides big implications for workplace safety, as well as impaired driving laws.

Other studies support that data. A Canada-based study showed that drug testing for THC impairment is inaccurate, and improvements are needed before we can truly understand cannabis impairment while driving, and before we can truly determine who is impaired. 

In the meantime, some job searches allow job searches of only jobs that don’t drug test, forcing prospective employees to disclose what substances enter their body. Phynally, an online resource launched by Philadelphia, Pennsylvania-based entrepreneur Damian Jorden, allows job seekers to search for jobs that don’t drug test. “We are the LinkedIn for cannabis users,” Jorden, 35, told Philadelphia magazine earlier this year.

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