Why Drug Testing Policies Are Topics of “High” Concern for New York Employers

In March 2021, the state of New York enacted the Marijuana Regulation and Taxation Act which, among other things, legalized the recreational use of marijuana for persons 21 and over, and which amended certain drug test laws in New York.  While many employees may be happy about the legalization of marijuana in New York, this law creates many issues for employers and HR professionals.

Although under federal law marijuana still remains illegal as a Schedule I controlled substance, New York is among a multitude of states that have legalized the recreational use of marijuana.  These conflicting state and federal laws are troubling for employers who seek a concrete answer on how to deal with their employees’ use of marijuana.  Unfortunately for employers, a simple answer does not exist.  As state laws are continuously evolving and jurisdictions are passing stronger protections for individuals who use marijuana, employers must assess their policies to ensure compliance with both state and federal laws.

So, what should employers do about their policies to comply with the new laws legalizing the use of marijuana?

Evaluate “Zero-Tolerance” Programs

Employers must evaluate their zero-tolerance drug testing policies.  Employers should first determine whether their workplace is regulated by The Drug Free Workplace Act (the “Act”).  Employers who are recipients of a federal grant or contracts with a federal agency are required to adopt a zero tolerance policy in their workplace and certify to the federal government that their workplaces are drug free in accordance with the Act.  Employers are not required to conduct mandatory drug tests under the Act.  Additionally, the Act requires employers to:

• Create and publish a written policy on the employer’s zero-tolerance policy and ensure that employees read and consent to the policy as a condition of employment;
• Institute awareness programs to teach employees about the company’s drug workplace policies, the dangers of drug abuse, any available counseling and rehabilitation programs, and the penalties that may be imposed on employees for drug abuse violations;
• Require employees to notify the employer within 5 days of any conviction for a drug offense in the workplace; and
• Continuously make a good faith effort to maintain a drug-free workplace.

Although federal law allows employers to institute a zero-tolerance policy for employees in “safety-sensitive” positions, New York law prohibits that except where specifically required and not just permitted by state or federal law.  If an employee’s job responsibilities require a commercial driver’s license (“CDL”), then the employer is mandated under the Omnibus transportation Employee Safety Act of 1991 to drug test those employees whose duties require a CDL.

Revise Policies to Comply with State Laws

Employers who are not required to comply with The Drug Free Workplace Act or who do not employ employees in certain safety sensitive positions must revise their policies to comply with varying state laws.  Although some states have legalized medical and recreational marijuana, no law obligates employers to tolerate the use of marijuana in the workplace or being high on the job.  As discussed below, however, it can be difficult to determine when someone is impaired by marijuana at work due to limitations on the currently available marijuana tests.

Employers may need to modify their zero-tolerance drug testing policies based on some state laws that require accommodations for use of marijuana off the job.  New York expressly prohibits employers from discriminating against medical marijuana users.  Additionally, New York’s employment drug screening laws prohibit employers from testing for marijuana or using a positive marijuana test result for means of employment or job discharge, unless the employee falls into one of the exceptions.  The Americans with Disabilities Act imposes further restrictions on employers’ use of medical exams that should be considered.  Employers should consult an expert to determine that their policies comply with all applicable state and local laws.

Understand What the Results of a Marijuana Drug Test Mean

The vast complications employers face when drug testing for marijuana stem from the fact that testing for marijuana impairment does not render the same type of results as testing for alcohol impairment.  Marijuana is unlike alcohol.  States set a legal limit to determine whether a person is impaired by alcohol; however, there is no specified amount of tetrahydrocannabinol (the psychoactive component in marijuana more commonly known as THC) known to determine whether a person is impaired by marijuana, since THC metabolizes into a compound that can remain in an individual’s body for weeks after marijuana use.  Further, factors such as whether a person only casually uses pot or is a heavy user also affects the level of THC remaining in his or her body after the impairing effects of the marijuana wear off.  Hence, it is difficult to interpret from the results of a positive drug test for marijuana if the individual was actually high at the time of the test or if the THC detected is merely lingering in the individual.  Employers are starting to realize that it is increasingly difficult to use the results of a marijuana drug test in the same way as a detection test for alcohol.  Instead, employers are looking for tests to measure performance impairment.

When Can Employers Test for Marijuana?

New York state law explains that when an employee displays specific articulable symptoms while working that decrease or lessen the employee’s job performance or such specific articulable symptoms interfere with the employer’s obligation to provide a safe and healthy workplace, reasonable suspicion testing can take place and adverse action can be taken against the employee after a positive test result.  Employers must note that “articulable symptoms” can include in any of the following: delayed reactions, poor coordination, stumbling, slurring words, excitedly talking, laughing, not making sense, twitching, red eyes, dilated pupils, sleeping, dry mouth, or odor of marijuana.  Because of the requirement that there be a reasonable suspicion someone is using marijuana at work, unless the particular position is exempt (e.g. positions requiring a CDL), employers should generally not test applicants. It is important for employers to remember that if you are going to take any adverse action against an employee based on articulable symptoms that you observed, those symptoms must be objectively documented by at least two people in managerial positions who personally witnessed the behavior.  Further, any documentation to support an adverse employment action cannot be based on hearsay or something someone else observed.  In addition to satisfying the requirements of New York law, New York employers must also satisfy the requirements of the Americans with Disabilities Act before conducting any medical exams which may be considered a disability-related inquiry.

Best Practices for Employers to Comply with State Laws

Below we have put together a list of best practices employers can implement to ensure your workplace remains drug free without violating the rapidly shifting state and local laws protecting the use of marijuana.

• Just as employers do not tolerate the use of alcohol in the workplace or showing up to work under the influence of alcohol, employers can still implement those same rules with regard to marijuana. Create and distribute workplace policies that delineate the circumstances that would prompt reasonable suspicion that an employee is high and mandate drug testing.  The policy should also set forth any consequences an employee could face if the employee tests positive for marijuana.
• Employers should train supervisors and managers to spot signs of impairment. An employee may exhibit signs of impairment from marijuana if the employee is disregarding safety protocols, exhibiting odd behaviors, or repeatedly making bad decisions.  If it is apparent that an employee is under the influence of marijuana, report the employee for possible testing.  If the employer is able to determine that the employee is under the influence of marijuana in the workplace, the employer may take disciplinary actions against that employee.
• Before deciding on drug policies and testing programs, consult with an expert to ensure all policies are compliant with Federal, state, and local laws. In addition, employers should note that if the company operates in different states (or even different counties), they must make sure that all policies satisfy all applicable laws based on where the employees are located.
• Be sure to thoroughly educate employees about any new drug policy implemented and all repercussions an employee may face for failed tests, including reasonable suspicion or post-accident tests.

While the whirlwind of changes in this area of law has created a lot of confusion for employers, Rimon is here to help employers navigate these new laws to develop and implement compliant drug policies and testing programs.

Read more about our Employment and Human Resources services.

This summary is provided for informational purposes only and is not intended to constitute legal advice nor does it create an attorney-client relationship with Rimon, P.C. or its affiliates.