The New York State Department of Labor announced that employers may not include marijuana on its drug testing panel for most employees in the state in October 2021. This followed the legalization of recreational marijuana use in the state earlier in the same year.
According to the guidelines released by the DOL, employees (in most instances) must be allowed the freedom to use recreational marijuana outside of the workplace. Similar to alcohol use, restrictions only come into play when the substance is used during work hours or creates “articulable symptoms of impairment” that either impact the employee’s performance or the overall safety of the workplace.
The only employers who are exempt from this rule, are those who hire state and/or federal employees. This would include employers of safety-sensitive commercial vehicle drivers.
If you employ DOT-regulated drivers who reside in the state of New York, the above drug testing regulations will not apply to them. They should be enrolled in a federally-regulated drug and alcohol testing program that includes marijuana on the drug testing panel.
This means that although recreational marijuana is legal in the state in which they reside, it is illegal for them to consume it as a federally-regulated employee.
If they produce a positive drug test result for marijuana use, you will be required to pull them from duty and report the results of that test to the DOT Clearinghouse. That driver will then need to complete the return-to-duty process before they’re able to operate a CMV for any employer in the future.
However, if you employ non-CDL drivers, front-desk staff, or other non-federally regulated employees that reside in New York, you can no longer include marijuana on your drug tests for these employees – either for pre-employment drug tests or random drug tests.
It’s important to reiterate to your federally-regulated drivers that marijuana is still prohibited for safety-sensitive employees and that a positive drug test for the substance will result in them being pulled from the road immediately.
Nearly 41,000 positive drug tests for marijuana were reported to the DOT Clearinghouse in 2022 alone – a number that continues to rise as medical and recreational marijuana is legalized across the country.
It's important to warn your DOT-regulated drivers about the potential dangers of using CBD, which may contain trace amounts of THC and has been known to contribute to a positive drug test result. If they are uncertain whether the product they’re using is 100% safe, they should err on the side of caution and look for an alternate remedy that is not CBD-based.
Navigating DOT drug test rules, especially if you employ a mix of DOT-regulated and non-regulated workers. is no easy task. But working with a reliable third-party administrator (TPA) like Foley can make it a little less confusing and stressful.
Our compliance experts will work closely with you to determine who on your employment roster needs to be enrolled in a DOT drug and alcohol testing program, and who needs to be enrolled in a drug-free workplace program.
Foley also specializes in DOT Clearinghouse compliance. We can help register your drivers, ensure you're getting the right consent to perform compliant Clearinghouse queries, and report positive drug test results to the Clearinghouse on your behalf.
Ready to make drug testing easier and have peace of mind that you're following the most recent New York drug testing laws? Get a free demo of our drug testing program today.
This Foley article has been updated with the latest regulatory information as of June 7, 2023.