New York employers are no longer allowed to drug test most workers for marijuana, the state Department of Labor (DOL) announced in new guidance.
While many legal cannabis states have made it so workers can’t be penalized for testing positive, New York appears to be the first to explicitly bar employers from testing for THC at all—with limited exceptions for certain categories of workers.
Employers can still punish people for being actively impaired on the job, but the new rules create a high threshold for proving impairment, going so far as to say that the odor of cannabis is not enough on its own to be used as evidence.
The legalization bill that former Gov. Andrew Cuomo (D) signed in March broadly prohibits discrimination against employees who use cannabis while off duty, with some exceptions such as those who are regulated by the federal Department of Transportation.
In essence, New York’s DOL said in an FAQ published earlier this month that drug testing requirements for marijuana constitute discrimination.
“Can an employer test for cannabis?”
“No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.”
“Can an employer drug test an employee if federal law allows for drug testing?”
“No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law.”
Prior to the passage of statewide legalization, New York City officials had established a local ban on pre-employment drug testing for marijuana.
Faye Caldwell, an attorney and advisor who specializes in drug testing laws, said in a video that DOL’s new rules on the issue represent a “seismic” policy change.
“This is the first state in the nation to ever enter this,” she said. “In most other states, there may be no ability to take action in many circumstances, but there was no prohibition on testing. So this will make some massive changes for employers who have employees in the state of New York and have drug testing policies.”
Quest Diagnostics, which provides employment drug testing services, said New York’s move is “a significant change” that makes it “the first state to essentially prohibit cannabis testing in all but narrowly defined situations.”
New York employers can still punish workers who possess or consume cannabis while on the job, but DOL laid out strict rules before a company can penalize an employee over active impairment.
Since there’s no device that can test for active impairment—and tests for THC metabolites can show traces of marijuana for weeks after a person consumes marijuana—employers must show that a given worker “manifests specific articulable symptoms of impairment” in order punish them over on-duty marijuana use.
Those symptoms must “decrease or lessen the performance of their duties or tasks” and “interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws,” DOL said.
“Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited.”
Also, the department explained that employers aren’t required the penalize workers if they use or possess marijuana during work hours, but they have that option available to them if they can meet its standards of evidence.
Drug testing and workplace issues related to marijuana has become a hot topic as more states move to end criminalization. The conversation has reached everywhere from private industry to Congress.
For example, Amazon recently said that its earlier decision to end drug testing for cannabis will also be retroactive, meaning former workers and applicants who were punished for testing positive for THC will have their employment eligibility restored.
Lawmakers in the Senate and House have both included language in recent appropriations reports urging a review of employment policies for federal agencies with respect to personal use of cannabis. The House version passed in July, while the Senate Democrats’ report was released on Monday.
The Office of Personnel Management (OPM) recently issued a memo to federal agencies that says admitting to past marijuana use should not automatically disqualify people from being employed in the federal government.
Meanwhile, the Biden administration came under criticism this year after it was reported that it had fired or otherwise punished dozens of staffers who admitted to prior marijuana use. That came after the White House instituted a policy of granting waivers to some staff who’ve used cannabis.
Press Secretary Jen Psaki subsequently said that nobody in the White House was fired for “marijuana usage from years ago,” nor has anyone been terminated “due to casual or infrequent use during the prior 12 months.” However, she’s consistently declined to speak to the extent to which staff have been suspended or placed in a remote work program because they were honest about their history with marijuana on a federal form that’s part of the background check process.
A key U.S. House committee approved a large-scale defense spending bill last month that includes report language voicing concern about racial disparities in military drug testing practices and ordering the Pentagon to conduct a review of the issue.
Earlier this month, the NBA said it is extending its policy of not randomly drug testing players for marijuana through the 2021-2022 season.
Paul Armentano, deputy director of NORML, told Marijuana Moment that “random marijuana testing in the workplace, such as pre-employment drug screening, has never been an evidence-based policy. Rather, this discriminatory practice is a holdover from the zeitgeist of the 1980s ‘war on drugs.’”
“But times have changed; attitudes have changed, and in many places, the marijuana laws have changed,” he said. “It is time for workplace policies to adapt to this new reality and to cease punishing employees for activities they engage in during their off-hours that pose no workplace safety threat.”
Where marijuana implementation stands in New York
As it stands, adults 21 and older can possess up to three ounces of cannabis or 24 grams of concentrates in New York—and they can also smoke marijuana in public anywhere tobacco can be smoked—but there aren’t any shops open for business yet.
New York’s Cannabis Control Board (CCB) held its first meeting earlier this month, a key step toward fully implementing the adult-use marijuana program.
Members of the board, who were recently appointed by the governor and legislative leaders, also discussed ethical considerations for regulators, approved key staff hires and talked about next steps for getting the recreational cannabis market stood up.
Gov. Kathy Hochul (D), who replaced Cuomo after he resigned amid a sexual harassment scandal, has repeatedly emphasized her interest in efficiently implementing the legalization law.
At a recent event, she touted the fact that she had quickly made regulatory appointments that had been delayed under her predecessor. “I believe there’s thousands and thousands of jobs” that could be created in the new industry, the governor said.
The first licensed recreational marijuana retailers in New York may actually be located on Indian territory, with one tribe officially opening applications for prospective licensees last month.
In July, a New York senator filed a bill to create a provisional marijuana licensing category so that farmers could begin cultivating and selling cannabis ahead of the formal rollout of the adult-use program. The bill has been referred to the Senate Rules Committee.
Because the implementation process has been drawn out, however, one GOP senator wants to give local jurisdictions another year to decide whether they will opt out of allowing marijuana businesses to operate in their area—a proposal that advocates say is unnecessary and would create undue complications for the industry.
Under the law as enacted, municipalities must determine whether they will opt out of permitting marijuana retailers or social consumption sites by December 31, 2021. Sen. George Borrello (R) introduced legislation earlier this month that would push that deadline back one year.
Legalization activists aren’t buying the argument, however.
Adding pressure to get the market up and running is the fact that regulators in neighboring New Jersey recently released rules for its adult-use marijuana program, which is being implemented after voters approved a legalization referendum last year.
For the first year of cannabis sales, the state is expected to see just $20 million in tax and fee collections. That will be part of an estimated $26.7 billion in new revenues that New York is expected to generate in fiscal year 2021-2022 under a budget that the legislature passed in April.
Meanwhile, a New York lawmaker introduced a bill in June that would require the state to establish an institute to research the therapeutic potential of psychedelics.
Photo courtesy of Philip Steffan.
Governors Across The U.S. Tout Marijuana Reform Progress In State Of The State Speeches And Budgets
Governors across the U.S. have been taking the opportunity to tout marijuana reform accomplishments as part of their annual State of the State speeches and budget requests this month.
From New York to South Dakota, the comments and proposals from state executives demonstrate how cannabis has become more mainstream and is being talked about in high profile venues alongside more traditional fare such as taxes, education and infrastructure.
It’s also part of a growing theme, as governors have increasingly brought up marijuana policy in State of the State addresses each year to kick off the new year as the legalization movement spreads.
Here’s a look at what governors are saying about marijuana policy in 2022:
While adult-use marijuana retail sales have yet to launch in New Jersey after voters approved a 2020 legalization referendum, the state’s top executive said in his State of the State address that he’s expecting an economic boon.
“Many jobs await in the cannabis industry ready to take off,” Gov. Phil Murphy (R) said.
The governor also said separately in his second inaugural address this month that “businesses in the new cannabis industry that we are setting up in the name of social justice” are part of efforts to “continue growing the innovation economy that will power our future and make us a model for the nation and the world.”
Businesses on the cutting edge of new technologies that will revolutionize our grasp of the possible.
Businesses in the new cannabis industry that we are setting up in the name of social justice.
In online gaming and sports betting, which we now dominate.
— Governor Phil Murphy (@GovMurphy) January 18, 2022
As the state prepares to implement legal cannabis sales, Murphy said late last year that he’s open to giving adults the right to cultivate marijuana for personal use even though it’s not currently written into the law.
New Mexico Gov. Michelle Lujan Grisham (D) talked in here State of the State speech about the economic potential of the marijuana industry under the legalization law she signed last year.
“We’re expanding our economic footprint into every single community,” the governor said in her State of the State address. “Legal cannabis is going to create thousands of jobs and serious tax revenue for local governments to support local services in every corner of our state.”
Legal cannabis is going to create thousands of jobs & serious tax revenue to support local services.
Clean hydrogen will support thousands of jobs, especially in rural New Mexico, while helping us sprint toward our net-zero carbon deadlines and decarbonize transportation.
— Michelle Lujan Grisham (@GovMLG) January 18, 2022
New York Gov. Kathy Hochul (D) released a State of the State book earlier this month that called for the creation of a $200 million public-private fund to specifically help promote social equity in the state’s burgeoning marijuana market.
The governor said that while cannabis business licenses have yet to be approved since legalization was signed into law last year, the market stands to generate billions of dollars, and it’s important to “create opportunities for all New Yorkers, particularly those from historically marginalized communities.”
That proposal was also cited in Hochul’s executive budget, which was released last week. The budget also estimated that New York stands to generate more than $1.25 billion in marijuana tax revenue over the next six years.
The briefing book for the executive budget touts how Gov. Kathy Hochul (D) has “prioritized getting New York’s cannabis industry up and running” since marijuana was legalized under her predecessor last year. That includes appointing key regulators who’ve been “creating and implementing a comprehensive regulatory framework.”
The governor of Rhode Island included a proposal to legalize marijuana as part of his annual budget plan—the second time he’s done so. And time around, he also added new language to provide for automatic cannabis expungements in the state.
Gov. Dan McKee (D) released his request for the 2023 fiscal year on Thursday, calling for adult-use legalization as lawmakers say they’re separately nearing a deal on enacting the reform. It appears that an outstanding disagreement between the governor and legislators concerning what body should regulate the program remains unresolved based on the new budget proposal, however.
In general, McKee’s plan would allow adults 21 and older to purchase and possess up to one ounce of cannabis, though it would not provide a home grow option. Adults could also store up to five ounces of marijuana in secured storage in their primary residence.
“The governor recommends creating a strictly regulated legal market for adult-use cannabis in the state,” an executive summary states. “This proposal would create a weight-based excise tax on marijuana cultivation, an additional retail excise tax of 10 percent, and also apply sales tax to cannabis transactions.”
South Dakota Gov. Kristi Noem (R) isn’t a fan of adult-use legalization, going so far as to fund a lawsuit against a voter-approved 2020 reform initiative that ultimately led to a court ruling voiding the law. Her office has even suggested that activists behind the successful legalization campaign should front the legal bills for the case.
However, she seems to recognize the popularity of the issue and has recently attempted to associate herself with the implementation of the separate medical cannabis legalization law that voters also approved, as she did in her State of the State address this month.
“I take our citizens’ health seriously. I don’t make these decisions lightly. And when we create new policy, we’re going to do everything we can to get it right from day one,” Noem said. “Our state’s medical cannabis program is one example.”
“It was launched on schedule according to the timeline passed by South Dakota voters,” she said. “I know there will be some debate about that program this session. My focus is on making sure South Dakota has the safest, most responsible, and well-run medical cannabis program in the country.”
Noem tried to get the legislature to approve a bill to delay implementation of the medical cannabis program for an additional year, but while it cleared the House, negotiators were unable to reach an agreement with the Senate in conference, delivering a defeat to the governor.
In response, her office started exploring a compromise last year, with one proposal that came out of her administration to decriminalize possession of up to one ounce of cannabis, limit the number of plants that patients could cultivate to three and prohibit people under 21 from qualifying for medical marijuana.
Advocates weren’t enthused with the proposal, and now they’re taking a two-track approach to enacting broader legalization legislatively and through the ballot.
In his final State of the Commonwealth address this month, now former-Gov. Ralph Northam (D) talked about the criminal justice implications of his state’s move to legalize marijuana last year.
“We also worked closely with you to make sure our criminal justice system reflects the Virginia that we are today. Too often, our modern-day punishments and practices have their roots in a more discriminatory and unfair past,” he said. “That’s why we’ve made marijuana use legal.”
Too often, our modern-day punishments and practices have their roots in a more discriminatory and unfair past.
That’s why we’ve made marijuana use legal. That’s also why we have ended use of the death penalty in Virginia—the first southern state to do so. #VASOTC
— Governor Ralph Northam (@VAGovernor73) January 13, 2022
He also thanked the legislators who championed the reform “for their work on this policy, which is complicated, but important.”
Meanwhile, the new governor of Virginia, Glenn Youngkin, said recently that while he’s not interested in re-criminalizing marijuana possession, which became legal in the state last summer, but he feels there’s “still work to be done” before he gets behind creating a market for commercial sales and production.
Photo courtesy of Mike Latimer.
Virginia GOP Lawmakers Begin Forming Plans For Marijuana Sales Launch
“There will be a bill. There may be multiple bills. But something is going to come out of this chamber.”
By Ned Oliver, Virginia Mercury
GOP lawmakers in the Virginia House of Delegates are taking their first stab at legislation to open the retail marijuana market, introducing bills that would lower the tax rate on sales and redirect proposed social equity funding to school infrastructure.
But leadership in the chamber stressed that the effort remains very much a work in progress and that they expect plenty of changes as the legislation makes its way through the committee system.
“We’ll come up with something,” said Garren Shipley, a spokesman for House Speaker Todd Gilbert, said last week. “There will be a bill. There may be multiple bills. But something is going to come out of this chamber.”
Republicans unanimously opposed legalization when Democrats voted last year to allow people to grow and possess small amounts of marijuana. But Democratic lawmakers’ decision to leave it until this year to finalize the particulars of how a legal retail market would work—combined with the loss of their House majority in November—has left the once-reluctant GOP with a key role in deciding how to proceed.
Gilbert said that while his caucus opposed legalization, he views it as imperative to come up with a mechanism for legal sales, complaining that the legal framework left in place by Democrats has only empowered the black market.
The party has so-far left the heavy lifting on that front to Del. Michael Webert, R-Fauquier, who was among a handful of GOP lawmakers to support reducing penalties for marijuana possession two years ago and is the only member of the party to introduce a comprehensive bill governing retail sales.
While his bill largely tracks with legislation introduced by Democrats in the House and Senate, it diverges in a few key areas.
First, it halves the proposed tax rate on retail sales from 21 percent to 10 percent, which would be the lowest in the country. Webert called the step important to compete with the black market, citing the experience of California, where the combined tax rate on sales is just over 36 percent.
“They have an ungodly huge black market,” Webert said. “So we don’t want the taxes so high that we drive things to the black market.”
His bill also changes how the money would be spent.
Social equity and schools
Democrats centered their legalization effort around social equity provisions aimed at making amends for disproportionate enforcement of marijuana laws in Black communities. To that end, they proposed that 35 percent of tax revenue from marijuana sales be dedicated to a Cannabis Equity Reinvestment Fund, which the law proposed be dedicated to providing scholarships, community programs and business loans to people and communities “historically and disproportionately targeted and affected by drug enforcement.”
Webert’s bill eliminates that fund, instead proposing the revenue for a new grant program to help local governments pay for the cost of repairing or replacing roofs.
Finding more state funds to fix decrepit school buildings has been a focus for some Republicans recently and Webert said his approach would benefit both rural and urban areas that have struggled with the issue.
Webert also proposes tweaking—but not eliminating—a program devised by Democrats to give people negatively impacted by prohibition priority access to marijuana business licenses.
His legislation strikes criteria that would have extended preference to people convicted of marijuana crimes in the past — something that GOP lawmakers vocally opposed last year. But it maintains language that would allow priority access for people who live in areas that were subject to higher than average enforcement or are economically disadvantaged. It also maintains eligibility for people who attended a Virginia historically black college or university.
Referendums, unions and resentencing
The bill also includes subtler departures from the approach proposed by Democrats. For instance both bills allow localities to hold referendums to opt out of marijuana sales, but the GOP bill would bind towns to the decision of their surrounding county while the Democratic bill treats them as independent jurisdictions. (Legislation from two GOP delegates goes further, barring any retail marijuana stores unless sales are specifically approved by a local referendum.)
The GOP bill also drops languages that would block local governments from passing new zoning rules that apply only to marijuana businesses.
And it strikes language that was aimed at promoting unionization in the new industry by refusing to license business owners who oppose unionization efforts by employees or rely heavily on independent contractors.
For now, Republicans and Democrats have proposed similar stances on resentencing for people currently imprisoned on marijuana charges, allowing them to petition a judge to reconsider their sentence, though the GOP bill excludes people convicted of distributing the drug to minors.
A bill authored by Del. Carrie Coyner, R-Chesterfield, goes further, proposing automatic resentencing hearings.
Both chambers have also introduced separate legislation to move the date retail sales can begin from 2024 to 2023—a key recommendation from lawmakers tasked with studying the issue over the summer.
The chambers differ, however, on whether to include large hemp processors in the stop-gap program. The House version limits early sales to existing medical producers. The Senate version allows large industrial hemp processors to also enter the market early.
So far, none of the bills have been docketed in the House of Delegates and it remains unclear when debate on the measures will begin in earnest.
Bipartisan Pennsylvania Senators File Bill To Let Medical Marijuana Patients Grow Their Own Plants
A bipartisan group of Pennsylvania senators introduced a bill on Thursday that would allow medical marijuana patients to cultivate their own plants for personal use.
Sens. Dan Laughlin (R) and Sharif Street (D) first announced their intent to file the legislation in November, arguing that it is a necessary reform to ensure patient access by giving people a less costly alternative to buying from dispensaries.
Registered patients who are 21 and older, and who have been residents of the state for at least 30 days, could grow up to six plants in an “enclosed and locked space” at their residence, according to the text of the bill. They would be allowed to buy cannabis seeds from licensed dispensaries
SB1024 – Senator Sharif Street and I worked diligently to get our Medical Marijuana Home Cultivation Bill introduced.
— Senator Dan Laughlin (@senatorlaughlin) January 21, 2022
In an earlier cosponsorship memo for the new home grow bill, the lawmakers said that letting patients cultivate their own medicine would “help ease the cost and accessibility burdens for this important medicine.”
The new legislation has three other initial cosponsors in addition to Street and Laughlin.
Street had attempted to get the reform enacted as an amendment to an omnibus bill this summer, but it did not advance.
The senators argue that patients in particular are deserving of a home grow option, as some must currently travel hours to visit a licensed dispensary and there are financial burdens that could be alleviated if patients could grow their own plants for medicine.
Late last year, Laughlin and Street also unveiled a separate adult-use legalization proposal that faces significant challenges in the GOP-controlled legislature. And Street is behind another recent cannabis measure to provide state-level protections to banks and insurers that work with cannabis businesses.
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In the interim, Lt. Gov. John Fetterman (D), who is running for U.S. Senate this year, said one of his key goals in his final year in office is to ensure that as many eligible people as possible submit applications to have the courts remove their cannabis records and restore opportunities to things like housing, student financial aid and employment through an expedited petition program.
Pennsylvania lawmakers could also take up more modest marijuana reform proposals like a bill filed late last year to expand the number of medical marijuana cultivators in the state, prioritizing small farms to break up what she characterized as a monopoly or large corporations that’s created supply problems.
Rep. Amen Brown (D) separately announced his intent to file a legalization bill that he’ll be working on with Sen. Mike Regan (R), who expressed his support for the policy change a day earlier.
Additionally, another pair of state lawmakers—Reps. Jake Wheatley (D) and Dan Frankel (D)—formally unveiled a legalization bill they’re proposing last year.
Philadelphia voters also approved a referendum on marijuana legalization in November that adds a section to the city charter saying that “the citizens of Philadelphia call upon the Pennsylvania General Assembly and the Governor to pass legislation that will decriminalize, regulate, and tax the use, and sale to adults aged 21 years or older, of cannabis for non-medical purposes.”
Gov. Tom Wolf (D) said last year that marijuana legalization was a priority as he negotiated the annual budget with lawmakers. However, his formal spending request didn’t contain legislative language to actually accomplish the cannabis policy change.
The governor, who signed a medical cannabis expansion bill in June, has repeatedly called for legalization and pressured the Republican-controlled legislature to pursue the reform since coming out in favor of the policy in 2019. Shortly after he did that, a lawmaker filed a separate bill to legalize marijuana through a state-run model.
A survey from Franklin & Marshall College released last year found that 60 percent of Pennsylvania voters back adult-use legalization. That’s the highest level of support for the issue since the firm started polling people about it in 2006.
An attempt to provide protections for Pennsylvania medical marijuana patients from being charged with driving under the influence was derailed in the legislature last year, apparently due to pushback by the state police association.
Photo courtesy of Mike Latimer.