Beginning May 10, a New York City law will prohibit employers from conducting pre-employment marijuana tests. This is a step further than Nevada legislation that took effect January 1st in which it became illegal to reject a candidate from employment based on the results of a marijuana drug test. Both laws cite exceptions for safety-sensitive positions and jobs regulated by federal programs that require drug testing.
The volume of employment-related legislation regarding marijuana use is rapidly growing. Although all marijuana use is still illegal under federal law, at least 33 states allow medical use, and 11 of those states and Washington, D.C., also allow recreational use. The majority of legislation focuses on protections for workers using medical marijuana. Many state that employers may not discriminate based on a worker’s status as a registered card holder or for testing positive during a drug test. Others require “reasonable accommodation” for authorized medical marijuana use during off-hours. There is currently no protection that would allow employees’ use of marijuana in the workplace or impairment during work hours.
Because there are no definitive tests for determining current impairment for marijuana, employers are advised to base adverse action on a combination of “Good faith belief” and testing. This is evidenced when the worker manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position.
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