Recently released guidelines by the New York Department of Labor regarding cannabis and the workplace clarified that employers are prohibited to test workers for weed, said Marijuana Moment.

The guideline is based on the marijuana legalization bill called the Marijuana Regulation and Taxation Act passed into law by Governor Andrew Cuomo, which has provisions that outlaws the discrimination against workers that use marijuana outside work except for those that are regulated by the Department of Transportation, for example.

According to the guidelines on New York Labor Law 201-D, the MRTA has made it illegal to conduct marijuana drug testing based on workers’ cannabis consumption outside of the workplace and work hours, and without the use of the employer’s property or equipment.

Employers can still perform drug testing for cannabis in certain circumstances through an added subsection 4-a. Such actions are permitted if “an employer is/was required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate.”

Requiring drug tests for cannabis can also be conducted if the employer would be violating federal law, losing a federal contract, or voiding federal funding without it.

Employees who exhibit a decrease in performance while working due to cannabis impairment may also be subjected to testing. Those who inhibit employers’ obligations to make the workplace safe and healthy due to symptoms of cannabis impairment could be required to be tested.

New York’s move is considered a milestone in the history of marijuana legislation in the country. Legal advisor, lawyer, and drug testing laws specialist Faye Caldwell said, “This is the first state in the nation to ever enter this. In most states, there may be no ability to take action in many circumstances, but there was no prohibition on testing.”

This move can cause big adjustments in many employers across the state. Drug test services provider Quest Diagnostics noted that it is the first state to pass such laws except for well-defined cases and that it is a significant decision.

Marijuana Moment noted that employers can still implement punishments for workers who are found possessing or consuming marijuana while performing the job, in the workplace, or using work equipment Active impairment can also result in such sanctions.

However, it is important to note that it may be difficult to determine active impairment, and the smell of cannabis is not proof of it.

According to the Labor Department, there must be articulable symptoms of impairment which is defined as “objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.”

An example of this is the unsafe or reckless operation of heavy machinery. Employers are advised that such symptoms may be related to a disability protected by laws even if it is undisclosed to them.

Remote employees living in New York may not be covered by these guidelines as their private residence is considered a worksite, even if it used to perform remote work. Remote employees living in other states are not covered by the guidelines as the MRTA and the New York Labor Laws are only applicable within New York.