New York State and the City of Philadelphia are the latest to take action on drug testing for cannabis use. As more states and municipalities enact legislation and ordinances regarding recreational cannabis use and expand protections for employees’ use of medical cannabis, employers need to stay up to date on how those statutory schemes impact drug testing.

As we discussed (here), recent amendments to the New York Labor Law have made it clear that employers may not discriminate or retaliate against employees and job applicants because they consume cannabis recreationally, or for medical purposes. We cautioned that relying solely on drug tests to demonstrate impairment can be problematic because cannabis is detectable on drug tests for an extended period of time, and this detection period can be prolonged by consistent use. Accordingly, a positive test is an unreliable indicator that someone was impaired at or near the time of the test. The New York Labor Law makes clear that an employee must be exhibiting “specific articulable symptoms” of impairment before an employer can take action against them.

Consistent with the above, a recent guidance from the New York State Department of Labor (NYSDOL) confirms that employers are not allowed to test for cannabis unless explicitly permitted to do so under the New York Labor Law. According to the NYSDOL, an employer cannot require an employee or applicant to undergo a test for cannabis unless:

    (1) it is required to do so by federal or state law;

    (2) failure to do so would result in a violation of federal law or result in the loss of a federal contractor of federal funding; or

    (3) the employee manifests specific articulable symptoms as set forth in the statue.

The guidance goes on to state that an “employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law,” however employers can drug test an employee if a federal or state law requires the test or makes it mandatory. The guidance also reiterates the New York Labor Law’s restriction on employers taking any action against an employee unless the employee shows “articulable symptoms of impairment.” The guidance provides that odor alone is not evidence of articulable symptoms of impairment and provides one example stating that: “the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.” The guidance also makes clear that the amendments to Section 201-d of the New York Labor Law only apply to “employees employed within the State of New York” thus it does not protect employees who work remotely in another state that has different laws regarding cannabis use. 

Similarly, in Philadelphia, Pennsylvania, the city passed an ordinance that takes effect on January 1, 2022 which prohibits employers from conducting pre-hire cannabis testing. Under the ordinance, an employer, labor organization, or employment agency acts unlawfully by requiring employees to undergo pre-hire cannabis testing as a condition of employment. As stated in the ordinance, it applies only to prospective employees. Accordingly, it does not address how employers drug test current employees.

Like New York, the ordinance does not apply where drug testing is mandated by federal or state statute, regulation, or order, or where testing is required for a government contract or grant. The ordinance also provides for occupation specific exceptions to testing including positions in law enforcement, positions requiring a commercial driver’s license, positions requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals, and positions where an employee could significantly impact the health and/or safety of other employees or members of the public.

The changing legal landscape concerning cannabis and how it impacts the workplace continues to evolve and deserves every employer’s attention. Employers should remain up to date when and how they can test for cannabis and ensure that managers and supervisors are adequately trained to identify when an employee may be impaired. The current trend is that reliance on a positive cannabis drug test alone, is not sufficient to support an adverse employment actions in many jurisdictions.