Employers can't turn away applicants because of their off-duty legal cannabis consumption, the New York Department of Labor ruled this week. In addition, in most cases employers can't drug test and the results can't serve as a basis for concluding that an employee was impaired by marijuana.
Employers also can't use the smell of reefer as a litmus test to determine impairment or intoxication.
"While this is a victory for New Yorkers overall," Kaufman Dolowich & Voluck partner Aaron Solomon told Law.com, the guidance "will surely cause a myriad of obstacles for employers."
New York's stance contrasts sharply to decisions elsewhere in the country.
For example, Colorado gives employers the right to conduct random testing, and allows them to penalize workers for positive results. Meanwhile, while California has long been seen as a leader in legalization, its own laws have been described as a "patchwork" system, where employers have broad rights but challenges are commonplace.
Employers in New Jersey must use a two-stage process — a standard drug test followed by an examination by a certified impairment-recognition expert.
In the absence of a uniform federal policy, state and local leaders are likely to experiment like this for some time. New York's smoker-friendly position further clouds the air.
Thanks to ALM Reporter Hugo Guzman for this contribution.
Hugo Guzman
Hugo Guzman is a reporter on ALM's in-house desk based in California, covering legal departments at disruptive technology companies, as well as labor and employment issues involving the NLRB, EEOC and other regulators. Connect with him at [email protected] today.