New York State's adult-use cannabis industry is in its infancy, so there's still a lot that needs to be spelled out when it comes to what is legal and illegal when it comes to recreational marijuana. Some people, including employers, are still having a tough time adjusting to the fact that marijuana use in adults over the age of 21 is now legal. Previously, many workplaces used drug testing to ensure their employees were not consuming cannabis. But, is it legal to drug test now?

Can an employer drug test you for cannabis in New York State?

First, let's dive into whether your job can discriminate against you for using marijuana now. According to New York Labor Law,

The MRTA amended Section 201-D of the New York Labor Law to clarify that cannabis used in accordance with New York State law is a legal consumable product. As such, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.

So, your job is prohibited from discriminating against you if you consume cannabis (while outside of work). However, there are still some gray areas. Since cannabis use is still illegal under federal law, your employer can take action if it will cause them to suffer negatively due to some federal action. New York Labor Law says,

An employer is/was required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate
• The employer would be in violation of federal law
• The employer would lose a federal contract or federal
funding
• The employee, while working, manifests specific
articulable symptoms of cannabis impairment that
decrease or lessen the employee’s performance of the
employee’s tasks or duties
• The employee, while working, manifests specific
articulable symptoms of cannabis impairment that
interfere with the employer’s obligation to provide a
safe and healthy workplace as required by state and
federal workplace safety laws

Photo by CDC on Unsplash
Photo by CDC on Unsplash
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With that said, New York Labor Law does prohibit your workplace from drug testing you for marijuana in order to prove that you are impaired on the job or use cannabis,

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.

But again, keep in mind that there is still a gray area, depending on your employer, since cannabis is illegal under federal law.

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. 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.

The bottom line is that your employer generally can no longer drug test you for marijuana unless there are specific federal requirements to do so for your position. If you run into trouble, you may want to contact the New York Department of Labor or an attorney.

**This article does not provide legal advise or counsel

Photo by Testalize.me on Unsplash
Photo by Testalize.me on Unsplash
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