Can New York Employers Drug Test Most Employees For Weed?
Can New York Employers drug test most of their employees for weed? Here's everything we know from the New York State Department of Labor after they released new guidance.
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According to that new guidance, employers must cite “articulable symptoms of impairment” in almost any effort to take action against an employee.
Also according to this guidance, employers may prohibit marijuana use during work hours, including meal, break, and on-call periods. They may also prohibit marijuana possession on or in company property. However, they can't fire you or drug test you for it unless the employer has not adopted an explicit policy prohibiting use. That means, the employee manifests specific articulable symptoms of impairment that include:
• Decrease or lessen the performance of their duties or tasks
• Interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws
Recreational marijuana use in New York State was legalized for those 21 and older back in March. The state has yet to set up an official distribution method for cannabis sales, but penalties for possession of under three ounces have been eliminated.
Here are 5 of the frequently asked questions with the new guidance. You can read the full guidance online.
1) Is illegal cannabis use protected?
Only the legal use of cannabis by adults over the age of 21 under New York State law is protected.
2) 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.
3) Can I fire an employee for having a noticeable odor of cannabis?
The smell of cannabis, on its own, is not evidence of symptoms of impairment under Labor Law Section 201-D.
4) Are employers required to hire an employee back who was previously terminated for now legal cannabis use or a related expunged crime?
No, the law does not require employers to rehire former employees.
5) Can employers prohibit use of cannabis during meal or break periods?
Yes, employers may prohibit cannabis during “work hours."
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