In March 2021, the State of New York legalized adult recreational marijuana use through the Marijuana Regulation and Taxation Act (MRTA). Through this act, NY became the first state to directly prohibit marijuana employment drug testing that will severely limit employers’ ability to operate safe and efficient workplaces, placing them at a high level of risk and liability exposure.

Recently, specific guidance was issued by the NY Department of Labor to clarify the workplace rules. Although employers are not required to permit the use of marijuana at the workplace, there are a few narrow testing exceptions. These exceptions include situations when the employer has articulable reasonable suspicion of impairment or if the employee is covered under the regulations of the U.S. Department of Transportation (US DOT). Additionally, the state does not distinguish between safety-sensitive and non-safety-sensitive positions such as between a heavy equipment operator and an office administrator. The policy mandates employees are to be treated the same despite the fact there are varying degrees of position specific danger and public security concerns.

NY employers are encouraged to review their drug-free workplace policies and procedures and consult with their legal counsel to ensure compliance. Employers should also ensure that employee training includes an understanding of the company policy, workplace procedures related to substance use, and recognition of the signs and symptoms of substance use impairment. Employers should also remain vigilant as to evolving changes in state marijuana laws and statutes.

Please review the NY employer guidance and related commentary from Attorney Faye Caldwell, managing partner for Caldwell Everson LLC.