Can NYC Employers Drug Test for Marijuana?

With the legalization of recreational marijuana use in New York, many residents are curious about how this change impacts workplace policies. Many are asking if NYC employers can still drug test for marijuana. The short answer is no.

In most cases, employers in New York City can no longer drug test employees or job applicants for marijuana. However, there are exceptions. If you’re concerned about how these changes affect you, consulting an attorney who specializes in employment law can help clarify your rights.

Legalization of Marijuana in New York

In March 2021, New York State passed the Marijuana Regulation and Taxation Act (MRTA), which legalized the recreational use of marijuana for adults over 21. Along with legalizing possession and use, the law also introduced significant changes to how employers can handle marijuana in the workplace. Specifically, in New York City, the law builds on previous legislation that prohibited pre-employment drug testing for marijuana, expanding those protections to cover most employees and applicants across various industries.

NYC’s Employment Protections for Marijuana Use

The most significant change in employment law came in May 2020 when New York City enacted a local law that prohibited most employers from requiring job applicants to submit to marijuana drug tests as a condition of employment. Under this law, employers cannot test prospective employees for marijuana before hiring them, with only a few exceptions. With the passing of the MRTA, these protections were expanded to include current employees as well.

As of now, NYC employers cannot fire, refuse to hire, or discipline employees based on marijuana use outside of the workplace. In other words, what you do in your time, as long as it’s legal, is protected, and employers are not allowed to take adverse action against employees who use marijuana in their free time.

Exceptions to the Rule

While the general rule is that NYC employers cannot test for marijuana, there are some exceptions. In certain situations, employers may still conduct drug tests or take action based on marijuana use:

• Safety-sensitive positions: Employers can still test for marijuana if the job involves safety-sensitive tasks, such as operating heavy machinery, driving, or positions in which impairment could pose a risk to the health and safety of others. This also applies to certain healthcare positions, law enforcement roles, and any position that requires federal background checks or security clearance.
• Federal law compliance: Some employers are subject to federal laws that require drug testing for marijuana, even in states where recreational use is legal. For instance, companies that fall under the Department of Transportation’s regulations must test for marijuana if the position involves driving commercial vehicles.
• Reasonable suspicion of impairment: While NYC employers cannot test employees for off-duty marijuana use, they can take action if they have reasonable suspicion that an employee is impaired at work. In these cases, employers may require drug testing to ensure that the employee is not working under the influence, as long as they can document observable signs of impairment that affect performance.

Why It Matters

The shift in marijuana laws marks a significant change in how employers can regulate drug use in the workplace. In the past, employers had broad discretion to test employees for marijuana and take action based on positive results, but the legalization of recreational marijuana has forced many companies to reconsider their policies. Employees have the right to use marijuana in their personal lives, though they must still maintain professionalism and avoid impairment on the job.

It’s important to note that even with these protections, the nuances of marijuana law can be tricky. If you’re concerned about how these changes affect your job or your rights as an employee, speaking with an employment attorney is a good first step. They can help you navigate your rights under current laws and ensure that your employer is compliant with the new regulations. If you’re facing disciplinary action on the job due to marijuana use or your employer has asked you to undergo drug testing and you believe it’s a violation of your rights, contact Borrelli & Associates, P.L.L.C. to discuss your situation.