Most New York Businesses Can No Longer Test for Cannabis

Most New York businesses can no longer test employees for cannabis, according to guidance released earlier this month by the state Department of Labor. The policy change comes seven months after lawmakers approved broad cannabis legalization in the state.

A limited number of businesses, including those with federal mandates or contracts, may still test employees for cannabis and may still terminate employees for failing a drug test. All employers may still fire employees for using cannabis on the job or coming into work under the influence.

According to the guidance, employers also cannot hide behind federal cannabis prohibition as a reason to drug test employees for cannabis; however, employers may still require drug testing for those considered in safety-sensitive positions under both federal and state law. Employees under 21 are also excluded from the protections provided by the state’s adult-use cannabis law.

The agency notes that employers are also barred from prohibiting employees from consuming cannabis outside of work hours or forcing employees to waive their protection rights under the law as a condition of hire or continued employment. Employers do have the right to prohibit cannabis consumption at work or during work hours, including breaks.

The guidance also states that employers do not have to fire an employee for using cannabis while on the clock but “are permitted to take action” if they choose to do so.

Under the rules, drug testing is also not permitted to determine whether an employee is impaired, “since such tests do not currently demonstrate impairment.”

Federal agencies in New York are excluded from the updated drug testing policy.