New Law in New York State Limits Drug Testing for Employers

(Last Updated On: )

Special Announcement to all New York employers :

 The New York Department of labor has released guidelines for the use of marijuana and the workplace under NY Labor law 201d

The law makes the following an unlawful discriminatory practice:

To refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:

An individual’s legal use of consumable products prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property;

Among other things, the NY Department of Labor guidance limits testing for THC in most employment settings:

 

DRUG TESTING OF EMPLOYEES

Can an employer test for cannabis?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section  201-D(4-a) or other applicable laws.

Can an employer drug test an employee if federal law allows for drug testing?

No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. (See e.g., USDOL TEIN 15-90 explaining that neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorizes drug testing of employees.) However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position. (See

e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which

requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)

 

This law will require a review of the hiring process in place and may require changes to that process.

Justifacts recommends that you consult with your legal department to determine what changes, if any, need to be made to your hiring process in order to comply with this law.

The complete text of the legislation can be found here:

NY Law:

https://codes.findlaw.com/ny/labor-law/lab-sect-201-d.html

 

NY DOL Guidance:

https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf

 

It is important to note that Justifacts is providing this information as a service to our clients. None of the information contained herein should be construed as legal advice, nor is Justifacts engaged to provide legal advice. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult your attorney or legal department if you want assurance that our information, and your interpretation of it, is appropriate to your particular situation.