Employers use of marijuana drugs tests remains one of the big issues surrounding legalization of cannabis. But, at least for workers in New York, that is not a concern. They can enjoy cannabis on their own time without fear their boss will fire them the next day.

New York legalized recreational marijuana this year. The New York Labor Department recently issued guidance to employers on how to handle cannabis use among employees. They did so to deal with a situation that has come up across the country – the ability for employees to use cannabis during their off hours without losing their job because of a failed marijuana drug test.

The new guidance states that employers cannot drug test employers for cannabis, even if it is still illegal under federal law. They also cannot prohibit employees from using cannabis in their off hours or make a promise to not use cannabis a condition of employment.

The Problem With Drug Testing For Cannabis

As has repeatedly been the case in other parts of the country, the main issue with drug testing for cannabis is that THC, the active chemical in cannabis that causes the high, is still detectable for days and even weeks after use.

That makes drug testing for cannabis extremely difficult as a tool for proving someone is “under the influence” like law enforcement agencies do with breathalyzer tests for alcohol. This is one reason many companies, including Amazon, have stopped using marijuana drugs tests in pre-employment screenings.

The New York Labor Department addressed this issue. Referring to incidents in which employers suspect that an employee is under the influence, they wrote: “A test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment.”

They also wrote that employers cannot fire an employee because they believe they smell cannabis on them. They also cannot create a policy prohibiting employees from using cannabis outside the workplace.

There Are Exceptions to These Rules

While the guidance should allow employees the right to enjoy legal cannabis outside of work without fear of a marijuana drug test, the guidance does give employers options for dealing with those who show up to work under the influence or possess cannabis at the workplace.

The guidance states that employers can:

• Take action if an employee “manifests specific articulable symptoms of impairment” that lead to decreased job performance. This includes operating machinery in a reckless manner.
• Prohibit cannabis use during work hours, which include paid and unpaid breaks and meal periods. This applies even if the employee leaves the worksite.
• Prohibit employees from bringing cannabis on employer property, including leased and rented space and company vehicles.

This could provide something of a template for other states. However, the issue is not completely settled. Legal experts and human resource officers already  have questioned the rules. Employment attorney Andrew Lieb told Fox 5 in New York: “It defies logic. An employer’s handcuffed for doing anything against marijuana.” Cannabis users can likely expect legal challenges to the new rules.