There's at least one thing NY employers can't test workers for

There's at least one thing NY employers can't test workers for
(Christopher Katsarov/The Canadian Press via AP)

Employers forcing their workers to submit to COVID testing is all the rage now, or so it seems. That sometimes applies even if they have presented you with some form of immunity passport showing that they are vaccinated. Those rules are widely in effect in New York State, which is unsurprising given the fact that the Democratic Party controls nearly all the levers of governmental power. But there’s a different sort of test that New York workers in many occupations have had to submit to for many years that will be coming to an end in most circumstances. Thanks to recent changes in the law and a ruling by the state labor department, employers will no longer be able to require workers to undergo tests for cannabis in their systems. So if you’re a New Yorker and you happen to be inclined to smoke the wacky tobacco, puff away. There will, however, be a few exceptions to this freedom and questions about how this is actually going to wind up working. (NY Post)

New York workers can now unwind with weed after work without worry.

Albany’s labor department issued new guidance Tuesday that bans employers in the state from testing employees for cannabis unless the worker seems visibly stoned on the job.

Under the new rules, even reeking like pot smoke would not be grounds for a test, after the state ended its prohibition of recreational cannabis this spring.

Yes, now that recreational marijuana is legal in New York, the New York Department of Labor is telling employers that they can’t force workers to be tested, but there are a lot of exceptions that will muddy the waters. You can see one of them in the excerpt above. The employee can be tested if they seem “visibly stoned” on the job. But visibly stoned means “impaired.” Just smelling pot on a worker’s clothing or noticing that their eyes are red is not sufficient to order a test. The DoL wrote, “Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment.”

Right off the bat, this raises yet more serious questions about government mandates that rely on enlisting civilians to enforce them. How does one know for sure if a person is impaired? It’s hard enough for trained police officers and not even they get it right 100% of the time. Are you telling me that the manager’s assistant in the Human Resources department is supposed to take a look at you and visually determine if you’re high or not?

Let’s just say that Bob from HR looks you over and makes the call that you’re actually stoned. What then? We’ve discussed this here in the past and no solution has yet been presented to the puzzle that comes next. We’ve gotten pretty good at being able to tell who is drunk by giving them a breathalyzer or running a blood test. Alcohol fades from the system at a predictable and measurable rate. But if you’re out smoking pot after work, you’re going to have THC in your blood for a long time to come, perhaps weeks after you’ve totally come down from your buzz. In the scenario I set forth, running you out to get tested at that point isn’t going to tell the employer whether or not you were really still stoned when Bob nabbed you or if that was left over from the night before and you were just particularly tired or clumsy that day.

This is a mess. And we should also note that this free pass doesn’t apply to all New York workers equally. If you work for a federal contractor who is required to test its employees as part of a contract, those employers will still be able to mandate testing. Is that fair? Also, as soon as recreational pot was legalized, the NYPD sent out a letter to all police officers saying that mandatory testing was still in place and they are still not allowed to light up while off duty. Of course, at least the cops have a bit more experience telling if somebody is stoned.

But the point is that we once again have new laws and mandates being unevenly enforced for different people and unqualified individuals being saddled with the task of enforcing these orders. In New York, there’s one law for employees of federal contractors, one law for all other private-sector workers, and yet another for cops in New York City that doesn’t seem to be written down anywhere. Meanwhile, everyone can be forced to be tested for COVID at the drop of a hat and if you refuse, you won’t have to worry about having an employer so I guess you can smoke all of the pot you can afford. Great job, guys. That’s about as clear as mud.

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Jazz Shaw 1:01 PM on April 01, 2023