One key take away from the FAQs is that the NYDOL takes the position that drug testing for marijuana is generally prohibited, unless such testing is specifically required by federal or other state law, such as with commercial motor vehicle drivers.
The FAQs indicate that an “employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working,” only if the employee manifests specific articulable symptoms of impairment that interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws.
If there is no such policy, however, the employer cannot take action unless the employee’s job performance suffers or there is some safety risk.
The NYDOL’s FAQs draw into question employers’ ability to enforce reasonable safety rules relating to marijuana use and impairment, particularly for positions that implicate the safety of employees.
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