Employers in the health care sector with any operations in New York City face new questions in light of the passage of state and city laws that protect the legal use of marijuana and limit workplace drug testing.

With the enactment of such laws, many New York City health care employers are wondering what they are legally permitted to do when it comes to drug testing and maintaining a drug-free workplace, especially as many health care employers receive federal grants that require the employer to maintain a “drug-free workplace.”

Understanding the provisions of these new laws – and the exceptions built into them – is critical to remaining in compliance while preserving a drug-free work environment.

Background

In March 2021, New York State passed a law that, among other things, prohibits (subject to a few exceptions) discrimination against employees based on the legal use or possession of marijuana products while off duty and outside the workplace.

In May 2020, a New York City law went into effect prohibiting (subject to a few exceptions) employers from requiring applicants to submit to drug testing for marijuana and

The City Law

Under the City law, employers in New York City are generally prohibited from requiring that prospective employees submit to a drug test for marijuana as a condition of employment, but employers may still test for other drugs.

However, several exceptions may apply to health care employers that will enable them to conduct pre-employment drug testing for marijuana as a condition of employment.

Specifically, health care employers may still require pre-employment testing for marijuana as a condition of employment for applicants for:

• Any position requiring the supervision or care of medical patients.
• Any position where employees must hold a commercial driver’s license.
• Any position with the potential to significantly impact the health or safety of employees or members of the public, which include, as relevant to health care employers, positions that require:
  • That an employee operates a motor vehicle on most work shifts; or
  • Positions for which impairment would interfere with an employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.

Additionally, pre-employment testing for marijuana as a condition of employment is still permitted by health care employers if the drug testing is required pursuant to:

• Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant
• Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security
• A valid collective bargaining agreement that specifically addresses the pre-employment drug testing

The State Law

Under the State law, employers may not discriminate against individuals based on the legal use or possession of marijuana products while off duty and outside the workplace, subject to several exceptions. This means that an employer in New York may not refuse to hire an applicant, or discipline or terminate an employee, because that applicant or employee lawfully consumed marijuana outside of the workplace during non-work hours when the applicant or employee is not using the employer’s equipment and the consumption of marijuana does not impact the individual’s ability to perform necessary job duties. With respect to employers in New York City, these prohibitions are also subject to the pre-employment testing restrictions noted above.

Notwithstanding the State law’s prohibition on discriminating against individuals who legally use marijuana, health care employers must still take into consideration the health and safety of their employees and patients by ensuring that employees are not performing duties under the influence of any substance – legal or illegal – that could impair their judgment or performance. The State law includes provisions that ensure that employers are not required to allow employees unfettered use of marijuana that may impact their work performance.

Specifically, the State law makes clear that an employer would not violate the law by taking action based on an employee’s use of marijuana if:

• The employer’s actions were required by New York State or federal law, regulation, ordinance, or any other New York State or federal governmental mandate.
• The employee is impaired by the use of marijuana while working such that there is a decrease in the employee’s performance of their job duties (impairment is defined as an employee “manifest[ing] specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law”).
• The employer’s actions would require it to commit an action that would cause it to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Frequently Asked Questions

Is a Federally Qualified Health Care Center (FQHC) that receives federal grant funds required remove marijuana from its pre-employment drug testing procedures to comply with the City law?

Generally, yes. FQHCs should remove marijuana from pre-employment testing unless the terms of their specific grant(s) require such testing. Many federal grants require that recipients adhere to the Drug-free Workplace Act of 1988 (DFWA) by maintaining a drug-free workplace. But the DFWA does not specifically require pre-employment drug testing for grant recipients. Therefore, unless the FQHC has received a grant that specifically requires pre-employment drug testing for marijuana, it will not lose the grant in the absence of such pre-employment testing. Accordingly, FQHCs generally cannot take advantage of the exception under the City law permitting pre-employment testing for marijuana where such testing is required as a condition of receiving a grant of financial assistance from the federal government.

Are there certain positions for which health care employers can still conduct pre-employment drug testing even if it is not required as a condition of a federal grant?

Yes. Under the City law, health care employers may still require pre-employment testing for marijuana as a condition of employment for applicants for:

• Any position requiring the supervision or care of medical patients
• Any position where employees must hold a commercial driver’s license
• Any position with the potential to significantly impact the health or safety of employees or members of the public, including:
  • Positions that require an employee to operate a motor vehicle on most work shifts
  • Positions for which impairment would interfere with an employee’s ability to take adequate care in carrying out job duties and would pose an immediate risk of death or serious physical harm to the employee or other people.

What actions are permitted regarding current employees to maintain a drug-free workplace?

For drug-free workplace practices for current employees, employers are still allowed to prohibit use and possession of marijuana during work hours, on employer premises, and while using an employer’s property or equipment (exceptions and accommodations may be required for medical use of marijuana, provided that such use does not result in employee impairment).

Employers are also permitted to take action based on an employee’s use of marijuana if:

• The employer’s actions are required by New York State or federal law, regulation, ordinance, or any other New York State or federal governmental mandate;
• The employee is impaired (as defined above) by the use of marijuana while working such that there is a decrease in the employee’s performance of their job duties; or
• Failing to take action would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Are there any restrictions concerning current employees who are prescribed medical marijuana when it comes to maintaining a drug-free workplace?

Yes. While an employer may take action if an employee appears impaired (as defined above), the employer should speak with the employee to determine the cause of the impairment. If the employee admits they have used marijuana recreationally during working hours (or prior to arriving at work), the employer may rely on their normal disciplinary procedures.

If, however, the employee claims they have used marijuana for medical purposes, the employer must then engage in the normal interactive process/cooperative dialogue that is required when an employee claims a disability to find a reasonable accommodation.

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