Just hours after it was reported that the New York City Police Department (NYPD) would cease drug testing officers for marijuana following a directive from the New York City Law Department (NYCLD), the nation’s largest police force has reversed course, saying it a new statement that it will not be changing its policy, pending a review and consultation with city officials.
A document leaked from NYPD that surfaced on Wednesday—titled “NYPD NO LONGER PERMITTED TO DRUG TEST FOR MARIJUANA”—immediately captured headlines. And NYPD itself released an initial statement that indicated that it would no longer be subjecting officers to pre-employment, random or scheduled drug tests for cannabis, leaving observers with the impression that off-duty use that complies with state law would not be penalized based on the city law office analysis.
The statement said that there would be an exception in incidences where officers were suspected of being intoxicated for THC on the job. It also said that the department was “reviewing its current policies in light of this directive,” but it was interpreted by numerous media outlets as indicating the NYCLD directive on drug testing to all city agencies meant NYPD was bound to cease marijuana screenings in the interim.
That’s apparently not the case, according to a follow-up statement that NYPD sent to Marijuana Moment on Wednesday afternoon.
“The NYPD has received a legal memorandum from the City’s Law Department regarding the implementation of the Marijuana and Taxation Act (MARTA) in New York State law,” the new statement says. “We are in consultation with the Law Department over conflicts with the new state law and pre-existing federal law.”
“While these discussions continue, there is no change in NYPD policies, procedures, or testing protocols regarding the use of Marijuana by uniformed members of the service,” a spokesperson said.
The memo from NYPD, which was dated July 11 and first reported by Leeroy Johnson of Viral News NY, would also presumably have implications for other city agencies. PIX11News reported that the New York Fire Department (NYFD) would also stop testing firefighters for cannabis because of the city’s legal directive.
— Viral News NY (@ViralNewsNYC) July 13, 2022
“The New York City Law Department (‘Law Department’) has issued a legal opinion regarding the Marihuana Regulation and Taxation Act (‘MRTA’), which went into effect on April 1, 2021, and amended the New York State Labor Law to prohibit adverse employment actions based on recreational marijuana use,” the classified memo at the center of the story says.
“This legal opinion directed all City agencies, including the NYPD, to stop pre-employment, random, and scheduled drug testing for marijuana,” it continues. “The rationale behind this determination is that there is no test for marijuana that conclusively determines current intoxication, making it impossible to determine by drug test alone whether an employee has tested positive for marijuana because of improper use on the job or use during statutorily protected off-hours use.”
“Therefore, starting immediately, the Department should only drug test a member of service for marijuana if there is reasonable suspicion that the member is impaired by marijuana on the job in such a manner that impacts their job duties or where there is a federal requirement mandating testing for marijuana use, such as title which requires a Commercial Driver License.”
While the document was classified as confidential, an NYPD spokesperson seemingly confirmed the policy change before sending a separate interim message to press to “disregard the previous and await an updated statement.”
Existing NYPD policy makes it so officers who test positive for THC may be subject to immediate termination.
— Michelle Arezou Ross (@MRossNews) July 13, 2022
All of this comes more than a year after NYPD issued updated guidance to officers, notifying them that because cannabis was legalized for adult use, they are no longer able arrest adults 21 and older for simply using marijuana in places where smoking tobacco is permitted.
Last year, the state Department of Labor separately announced in guidance that New York employers are no longer allowed to drug test most workers for marijuana, with limited exceptions. Even prior to the enactment of legalization, New York City officials had established a local ban on pre-employment drug testing for cannabis.
There’s been some controversy of police policy as it respects cannabis laws, including in neighboring New Jersey.
In May, New Jersey lawmakers introduced a series of bills meant to empower employers to punish workers—including law enforcement and other first responders specifically— from using marijuana off duty in compliance with state law.
The legislation was filed after a document was released by the state attorney general’s office explaining how New Jersey’s adult-use cannabis law currently allows police to use marijuana when they are not on the job.
Back in New York, retail cannabis shops have not yet opened as regulators work to finalize rules and start to approve licenses. However, adults 21 and older can possess and publicly consume marijuana, as well as gift it to other adults as long as they aren’t being compensated.
Some unlicensed businesses have reportedly been exploiting that gifting provision by selling non-marijuana products in exchange for “free” cannabis. Regulators recently said that they’ve issued dozens of warning letters to such businesses.