NY Marijuana Regulation and Taxation Act Drug Screening

Marijuana Regulation and Taxation Act (MRTA) was signed into law on March 31, 2021, and legalized marijuana use and possession for adults who are at least 21 years old or older. The New York Department of Labor (DOL) published new guidelines and confirmed that employers cannot drug test most workers for the use of marijuana.

The DOL guidance answered frequently asked questions about drug testing for marijuana, including:

• 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.
• 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 DOL guidance provides that employers may take employment action or prohibit employee conduct for marijuana use where:

• 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.