NY employers can’t test for marijuana, with few exceptions

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marijuana joint

A woman rolls a marijuana cigarette in Bethpage, New York on Aug. 30, 2014. (Photo by Bruce Bennett/Getty Images)

NEW YORK — Most employees in New York can no longer be subjected to drug testing for marijuana by their employers as part of the state’s new law that legalized adult use of marijuana.

The state Department of Labor released a FAQ document earlier in October to help guide employers when situations or questions arise around employees who legally use marijuana.

Employers are not allowed to discriminate against employees who use marijuana outside of their workplace or their work hours, according to DOL. That includes testing employees for the drug in most circumstances, even if they smell like marijuana.

There are some exceptions to the new rule, such as if federal or state law requires drug testing for anyone who holds a specific position. However, an employer cannot test for marijuana simply because it is allowed under federal law, according to DOL.

Additionally, companies cannot use a marijuana drug test as proof of impairment at work.

There are some situations in which an employer may be able to take action against an employee suspected of using marijuana at a work site or during work hours, including if the worker shows demonstrative signs of impairment that “lessen the employee’s performance” of tasks or responsibilities, according to DOL. Smelling like marijuana is not considered a demonstrative sign of impairment.

The new labor rules don’t apply to employees under 21, since marijuana use for that age group is still illegal.

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