The Marijuana Regulation and Taxation Act makes it unlawful for any employer to refuse to hire, employ, discharge or otherwise take an adverse employment action against an individual or job applicant because of his/her legal use of cannabis.
As previously provided in New York’s Compassionate Care Act , certified patients, under the statute, may not be subject to any prosecution or penalty in any manner or denied any right to privilege solely for the certified medical use of cannabis.
However, an employer is not barred from enforcing a policy that prohibits an employee from performing his job while impaired or acting in a manner that would be in direct violation of federal law or cause it to lose a federal contract or federal funding.
If an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer must offer, in writing, the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result.
That said, although employers outside of New York City can conduct pre-employment drug testing, such testing would essentially be an exercise in futility since employers cannot use a positive test result to deny employment.
Under the CUMC Act, if an employer reasonably suspects an employee is using cannabis while working, or reasonably expects the employee is intoxicated from the use of cannabis, the employer may require the employee to undergo a drug test.
The drug test must include scientifically reliable, objective testing methods and procedures, such as testing of blood, urine, or saliva, and a physical evaluation to determine an employee’s state of impairment.
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