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Cannabis – To Test or Not to Test?

November 3, 2021

By Susan Chance, courtesy of SBAM Approved Partner ASE

As more and more states make the use of cannabis being legal, for medical or recreational use, employers have been challenged with making policies that will best protect the company while still allowing them to fill positions.

This has been a difficult challenge, and while most employers who use drug screens in their hiring practices still test for cannabis, a slow shift has started this year. At ASE, most of our clients who use our drug testing services still test for cannabis, but a few clients have dropped that panel from their drug testing just this year.

Because the use of cannabis is still illegal at the Federal level, it can be difficult to find the balances that works best. While many localities still support the employer in making decisions in off-duty use, the New York Department of Labor has issued guidance in relation to the Cannabis Regulation and Taxation Act (MRTA) on the “Adult Use Cannabis and the Workplace” with an FAQ document which can be found at: https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf

This document addresses recreational use only and prohibits employers from discriminating against employees when cannabis is used in accordance with New York State law. The law was amended to add information on when employers can make employment decisions regarding the use of cannabis:

  • An employer is/was required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate
  • The employer would be in violation of federal law
  • The employer would lose a federal contract or federal funding
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer. Employers should consult with appropriate professionals regarding applicable local, state, and federal laws that prohibit disability discrimination.

This legislation does not allow employers to use the following for employment decisions:

  • Observable signs of use that do not indicate impairment on their own
  • Drug tests results as the results do not show current use or impairment
  • The smell of cannabis

While there are other states and localities that have some type of legislation regarding cannabis and employment decisions, it seems that California and New York typically lead with the most restrictive policies, and other locations follow their lead. It will be interesting to see if other locations follow New York’s lead with this legislation.

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