Department of Labor Issues Guidance on Cannabis Law

Less than a week ago our firm presented “Essential Legal Updates” to the participants at the 19th Annual Employment and Human Resources Law Solutions Conference held at the Turning Stone Casino Resort. A good bit of time was spent unpacking New York State’s Cannabis Law and identifying the key policy and performance management takeaways for New York State employers.

The practical limits of testing employees for marijuana was front and center in our discussions. While we noted that (at the time) the law did not specifically prohibit marijuana testing, it seemed that apart from limited circumstances employers were better served foregoing the test.

On Tuesday, October 19, 2021, the New York State Department of Labor in essence confirmed this approach. In its new guidance, the Department made it clear that employers may not test employees for marijuana unless they have an objective indication that the employee is impaired. Even with a policy that bans marijuana on a work site – which remains perfectly permissible – employers must be able to document impairment signs before they test. Intangible suspicion – even based on factors such as smell are not enough.

The Department’s complete guidance can be found here.

Clients desiring assistance in drafting policies or developing a compliance plan for the Cannabis Law may contact Michael Dodd (mldodd@ferrarafirm.com) or Nicholas Fiorenza (njfiorenza@ferrarafirm.com) for assistance.