Employers can no longer test most job seekers for marijuana, NY says

With the legalization of recreational marijuana in New York earlier this year, most employers cannot penalize job applicants or employees for marijuana use off-duty.

With certain exceptions, they can't test employees for cannabis, either, under recent Department of Labor guidance, but they can still take action against an employee if an employee shows "articulable" symptoms of impairment on the job. The DOL guidance describes articulable symptoms of impairment as meaning "objectively observable indications" that the employee’s performance of the duties of their position are decreased or lessened, says Tamika N. Hardy, a partner in the Employment and Labor Practice Group at Rivkin Radler LLP in Uniondale.

Use vs. impairment

But indications of cannabis use, such as the smell on a person's clothing, are not, on their own, considered symptoms of impairment, and a test for cannabis usage cannot serve as a basis for an articulable symptom of impairment, according to DOL.

Still, because cannabis use has not been legalized on the national level, people applying for federally regulated jobs, such as those requiring a commercial driver's license, can be turned away if they test positive.

A spokesman for the nationwide delivery company UPS, Dan McMackin, told Newsday, "We always have and always will follow all [federal] DOT regulatory guidelines with regards to drug testing."

Impact of labor shortage

But in states across the country, with labor shortages, changing laws and evolving attitudes, fewer companies are testing for marijuana. The rate at which marijuana was being included in urine drug testing declined 5.2% in the United States between 2015 and 2020, said Barry Sample, senior director of science and technology at Quest Diagnostics, which performs more than 10 million drug tests annually.

Just this summer, Amazon announced it would no longer include marijuana in its drug screening program for any positions not regulated by the U.S. Department of Transportation.

"Employers are going to need to have a very clearly written, transparent, well communicated drug testing policy," Sample said, adding that, when tested for, cannabis is showing up in a greater percentage of samples, which he attributes it wider legalization along with more relaxed societal views.

What the tests show

Most employers have in recent years tested job applicants for five basic drugs: marijuana (THC); cocaine, amphetamines, opiates and phencyclidine (PCP), says Jacquelyn Gernaey, CEO of SevenStar HR in Port Jefferson, an HR consulting firm.

According to Quest data, U.S. marijuana positivity increased 16.1% in urine testing (3.1% in 2019 versus 3.6% in 2020), 35.2% in oral fluid testing (9.1% in 2019 versus 12.3% in 2020) and 22.5% in hair testing (7.1% in 2019 versus 8.7% in 2020).

But though it's now legal in New York and more workers are testing positive for cannabis, Gernaey said she has seen no increase in the number of impairment calls from concerned employers.

No medical test for impairment

Impairment is a tricky standard, made trickier by the fact that, unlike alcohol, there's no medical test for cannabis impairment.

"The science hasn’t caught up to the law," said Hardy.

There’s no urine drug test, oral fluid or hair drug test that can tell you if someone is impaired from marijuana, Sample says. It would only indicate they had used it at some point, he says.

"Alcohol has an impairment level, but with marijuana it’s not clear-cut at all," says Barbara DeMatteo, director of HR consulting at Portnoy, Messinger, Pearl & Associates in Jericho.

She still advises businesses to teach supervisors/managers how to identify signs of impairment on the job.

"I know what normal behaviors are, and [I know] if someone’s behaving differently," she says, pointing to signs like poor muscle coordination, delayed action time, not being coherent and not working safely.

Use not allowed at work

But employers still have certain protections.

An employee may not use or consume cannabis during work hours, and may not bring cannabis onto an employer’s property, Hardy says. Employees are also prohibited from use while operating an employer’s equipment/property, including a company-owned vehicle, she said.

Also, there's the articulable symptoms of impairment that decrease or lessen the employee's performance of their tasks or duties or affect workplace safety, Hardy said. For more on that, see New York labor law 201-D at tinyurl.com/49fan4ch. Employers are cautioned by the state that such articulable symptoms may also be an indication that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer.

Hardy noted employers can defer to the DOL guidance.

She also suggests businesses document their observations if they believe there are articulable signs of marijuana-induced impairment.

And if employers have reasonable suspicion of impairment during work hours, DeMatteo believes they could send the employee for a drug test.

"If I see articulable symptoms and the marijuana test comes back positive, I'm in a better position to take action against the employee," she says.

But it’s always best consulting with legal counsel.

Because "absent certain statutory exceptions," Hardy said, "if you cannot articulate signs of impairment, then you should not take any adverse employment action against the employee for a positive cannabis result."