New York State and Philadelphia are the latest jurisdictions to prohibit employers from discriminating against employees and potential hires on the basis of recreational or medical cannabis use.

New York’s Labor Law was recently amended for this purpose, with employers now required to demonstrate an individual was showing “specific articulable symptoms” of impairment if they wish to sanction them.

In line with these amendments, New York’s State Department of Labor released new rules for employers that prohibit them from testing workers for cannabis unless one of three potential exemptions is met:

  • It is required to do so by federal or state law;
  • Failure to do so would result in a violation of federal law or result in the loss of a federal contractor of federal funding; or
  • The employee manifests specific articulable symptoms as set forth in the statue.

It’s worth noting that cannabis odor does not count as an ‘articulable symptom’ of impairment. Rather, it suggests as an example, “the operation of heavy machinery in an unsafe and reckless manner.”

The new labor protections for cannabis users in New York only apply to workers employed within the state. Remote workers employed in another state may still be subject to mandatory testing for cannabis use.

In the city of Philadelphia, council members similarly passed an ordinance prohibiting employers from mandating marijuana tests as part of their hiring procedures in order to qualify for the role. However, the measure, which goes into effect on January 1, 2022, doesn’t address cannabis tests for current employees.

Philadelphia’s ordinance also lists exemptions that allow for pre-hires to be tested for marijuana use along the same lines as New York. These include if the test is ordered by a federal or state statute, or if the test is deemed necessary for a government contract or grant.

There are also job-specific exemptions, including for police officers, commercial drivers, certain care and support roles, and other jobs where public health and safety may be at risk.

New York and Philadelphia’s moves to expand employee protections from repercussions due to cannabis use is a growing trend across the US.

City officials are leading the charge in this regard, with Rochester, Richmond and New York City among others having prohibited workplace cannabis testing in recent years.

Maine’s marijuana legalization law includes provisions ensuring employers cannot discriminate against employees or prospective applicants on the basis of off-duty marijuana use.

Businesses are also taking note. Amazon recently announced it would no longer screen its employees or new hires for cannabis use, as outlined in a blog post endorsing federal cannabis legalization. There’s even a newly-launched job search board which filters out any company that requires a negative cannabis test as a condition for employment.

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