Navigating the Challenges of Drug Test Compliance in New York State

Conducting workplace drug testing in New York changed in 2021 when Recreational Marijuana became legal. The labor law placed some restrictions on workplace testing for marijuana, as it is considered a legal activity in New York. Yet here we are, 5 years later, and we are still encountering not just employers but testing companies that are still administering workplace testing that includes marijuana, which, with a select few exceptions, is no longer allowed. And with the changes in Federal rescheduling in 2026, it becomes even dicier. In this post, I intend to highlight the acceptable standards regarding it under Labor Law 201-D in New York State.

Understanding Labor Law 201-D

Often referred to as the "Legal Activities Act", it prohibits employers from discriminating against employees based on certain legal activities they perform outside of work.

Originally enacted in the early 1990s primarily to protect tobacco users, the law has evolved significantly, most recently to include protections for recreational cannabis use.

The Four Protected Categories

The law makes it illegal for an employer to refuse to hire, fire, or otherwise discriminate against an individual because of:

• Political Activities: Running for office, campaigning, or fundraising for a candidate/party. This must occur off-duty, off-premises, and without using company equipment.

• Legal Recreational Activities: Lawful, non-compensated leisure activities like sports, games, hobbies, reading, or watching movies.

• Legal Use of Consumable Products: This covers products like tobacco and alcohol. As of 2021, this explicitly includes the legal use of cannabis in accordance with state law.

• Union Membership: Membership in a union or the exercise of rights under the National Labor Relations Act (NLRA) or the Taylor Law.

The "Off-Duty" Criteria

For an activity to be protected under Section 201-d, it generally must meet three strict conditions:

1. Outside of Work Hours: Occurs before or after the employee's shift (including unpaid breaks).

2. Off Employer Premises: Does not take place on the employer's property or leased premises.

3. No Employer Equipment: Does not involve the use of company-owned laptops, phones, vehicles, or other assets.

Recent Major Amendments

• Cannabis (2021): With the passage of the MRTA, employers generally cannot fire or refuse to hire someone for smoking marijuana off-the-clock. Crucially, employers are now prohibited from testing for cannabis in most cases, unless mandated by federal or state law (e.g., DOT regulations).

• Federal Reclassification (2026): Reclassification to Schedule III will recognize medical marijuana as an acceptable treatment under the ADA, and accommodations may be required for the employee based upon their medical disability. In addition, it removes the previous legal requirements about contracts and funding, becasue it is no longer a Schedule I narcotic.

Key Exceptions (When an Employer CAN take action)

The law is not absolute. An employer may still take adverse action if:

• Workplace Impairment: In the case of cannabis or alcohol, if the employee manifests "specific articulable symptoms" of impairment that decrease performance or interfere with workplace safety. Key words - "Specific & Articulable."

• Contractual Obligations: For certain high-earning employees (historically those making over $150k, though adjusted for inflation), the law allows for contracts that restrict outside activities, such as high-level physicians and support services.

• Legal Requirements: If taking action is required by federal law, such as Department of Transportation-required testing.

  
  

Workplace safety officer reviewing drug test results

What does your written policy say?

Let's start with a few very important pieces. Is your policy current? If your Drug policy has not been updated since March 2021, then it may not be enforceable. When recreational marijuana use became legal, testing changed. It is no longer acceptable to conduct pre-employment or random testing for marijuana in New York State, and if your written policy didn't reflect that, that's a potential problem.

There were some carve-outs allowed, but with the rescheduling of Marijuana to a Schedule III in 2026, most of those have been negated as well. As noted previously, there are very few instances when an employer may test for marijuana in New York State. Those are;

Safety-Sensitive Positions - As designated by the Federal Department of Transportation, employees in regulated safety-sensitive positions, such as Bus and Truck Drivers, Pilots, and Train Engineers, are mandated to undergo testing that includes marijuana screening. This is a Federal designation. Operation of equipment such as Forklifts, Loaders, and Excavators is NOT considered a Safety-Sensitive Position for drug testing purposes in New York State.

Reasonable Suspicion Testing - Testing for marijuana may be conducted when an employee presents with "specific articulable symptoms" of impairment that impact performance or safety. This determination should be made by individuals who have received training in recognizing workplace impairment. Impairment does not include the odor of marijuana or bloodshot eyes, or a positive drug test.

Collective Bargaining Agreements - There was a pre-existing exemption under Labor Law § 201-D(4), which permitted an employer to take action if it believes its actions are "permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract, or collective bargaining agreement."

The importance of a written policy is unquestionable. If your company conducts both DOT and non-DOT testing, do your separate policies specify when and what type of testing will be conducted? Do the written policies indicate when marijuana testing will be conducted, and when it will not? For example, if the accident does not meet the Federal criteria for a post-accident drug test, the company may elect to conduct its own testing, if its policy allows. That test, however, would not include marijuana

It's a New Year, Conduct a Self-Audit

The beginning of the year is a good time to review your drug and alcohol policy to ensure it is up to date. Here are just a few of the items that need to be addressed annually.

• If you have DOT and Non-DOT Testing, are your written policies separate and up to date?

• If you're DOT-regulated, are any follow-up schedules being checked?

• If you're DOT-regulated, are any of your drivers' medical cards due?

• If you're DOT-regulated, are Employee Releases for Clearinghouse Queries on file?

• Have those queries been conducted?

• Are your agreements with all your Service Agents up to date, and are all their required credentials current? This includes C/TPA's, Collection Sites, Collection Personnel, Breath Alcohol Technicians, Substance Abuse Professionals, and Medical Review Officers.

• Are your employee lists accurate?

• Are your records current and available if the DOT requests an MIS Report?

  
  

  If you don't feel comfortable or are time-limited, consider consulting with a Consortium/Third Party Administrator (C/TPA) to perform these and other services for you.

Laboratory technician analyzing a drug test sample

Preventing Issues with Proactive Measures

Prevention is always better than reaction. To reduce the likelihood of drug-related incidents, consider these proactive strategies:

• Consult an Expert: Both regulated and non-regulated drug and alcohol programs have distinct needs and require comprehensive knowledge to implement effectively, fairly, and legally. Consider consulting with a C/TPA.

• Comprehensive Policies: Ensure your drug testing policies are up to date, legally compliant, and clearly communicated.

• Regular Training: Inform supervisors and employees about drug policies, legal implications, and the significance of safety.

• Random Testing: If random testing is required, spread testing throughout the testing period with no regular pattern.

• Health and Wellness Programs: Promote healthy lifestyles and stress management to reduce the temptation or need for substance use.

• Safe Reporting Systems: Encourage employees to report concerns without fear of retaliation.

• Provide Support: Utilize Employee Assistance Programs and Partner with Community Support Services.

  
  

By investing in prevention, you create a safer workplace and reduce the challenges associated with managing drug test results.

Moving Forward with Confidence

Navigating the challenges of a fair and comprehensive program requires a balanced approach that prioritizes safety, fairness, and compliance. By understanding the implications of administrative issues & positive test results, following clear procedures, supporting employees, and focusing on prevention, you can protect your workforce and your business and have a positive impact on your bottom line.

The goal is not just to enforce rules but to create an environment where everyone feels safe, respected, and supported. With the right strategies in place, you can confidently manage drug testing and maintain a healthy, productive workplace.

Remember, being a Leader is not about being in charge of people; it's about taking care of the people you are in charge of.