On October 8, 2021, the New York State Department of Labor (“NYDOL”) issued new guidance, largely in the form of Frequently Asked Questions (the “Guidance”), reflecting employment protections provided to cannabis users under the Marijuana Regulation and Taxation Act (“MRTA”), which was signed into law on March 31, 2021. As noted in a recent Cannabis Business Times article in which we were quoted, the FAQs are precedent-setting in prohibiting employers from testing applicants and employees for cannabis use altogether, except in very limited circumstances.
As we reported, the MRTA amends Section 201-d of the New York Labor Law (“NYLL”), which has long prohibited employers from discriminating against an employee based upon the employee’s lawful outside, off-duty work activities. Specifically, the MRTA amends this Section of the NYLL to expressly include the use of “cannabis in accordance with state law” as a lawful outside work activity. As a result, the MRTA instituted anti-discrimination protections for cannabis users and confirmed that employers are now prohibited from discriminating against applicants and employees based solely on the applicant’s and employee’s legal use or possession of cannabis products while off duty and outside of the workplace.
Drug Testing Applicants and Employees for Cannabis
Notably, the statutory language of the MRTA does not prohibit drug testing for cannabis. Within the Guidance, however, the NYDOL confirms that New York employers may not test...
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