GENERAL INFORMATION BULLETIN No. 22-01
TO: Department and Agency Directors of Human Resources, Personnel and Affirmative Action Officers, Equal Opportunity Specialists, Diversity and Inclusion Specialists
FROM: Jessica Rowe, Director of Staffing Services
SUBJECT: Cannabis Testing for State Titles
DATE: March 15, 2022
The Department of Civil Service (Department) conducted a review of the pre-employment drug testing policies and standards for cannabis to ensure compliance with the 2021 Marijuana Regulation and Taxation Act (MRTA). This review resulted in the continuance or discontinuance of pre-employment cannabis drug testing for certain titles.
Titles Requiring Pre-Employment Cannabis Testing Pre-MRTA
Prior to the enactment of the MRTA, agencies required pre-employment drug testing for cannabis for: (1) titles designated as peace or police officers; (2) titles designated as direct care/custodial; and (3) titles subject to federal oversight.
Pre-Employment Cannabis Testing Post-MRTA
Because the MRTA prohibits discrimination in employment based on the legal use of cannabis off-duty and off-site, most pre-employment cannabis testing will stop, effective March 15, 2022. Federal laws that merely authorize but do not require testing are not a basis to continue testing for cannabis. Pre-employment testing will continue only for titles that are required to carry firearms or where required by federal law and/or failing to conduct such testing would cause an agency to lose a federal contract or federal funding. Agencies may continue pre-employment cannabis testing for:
- Titles with assignments subject to the Omnibus Transportation Employment Testing Act of 1991 (OTETA);
- Police and Peace Officer titles that are required to carry firearms; and
- Titles covered in other federal statutes, regulations, and mandates that similarly require pre- and post-hiring testing for federal controlled substances, including cannabis.
The Department will utilize the above criteria when evaluating the appropriateness of pre-employment cannabis testing for titles established in the future.
Attachment A provides a list of titles, by agency, where pre-employment cannabis testing will continue; and Attachment B provides a list of titles, by agency, where pre-employment cannabis testing will be discontinued.
Post-Hiring Cannabis Testing
For titles noted in Attachment A, or titles in their respective series, that are required to carry firearms or where required by federal law and/or failing to conduct such testing would cause an agency to lose a federal contract or federal funding, testing may also be continued for the following situations:
- Civil Service Law Section 72 evaluations, including reasonable suspicion of use on the job;
- Return to work evaluations of an employee out on voluntary leave due to personal illness related to drug abuse; and
- Testing of employees who have entered into a last chance agreement with their agency, but only when the agreement explicitly specifies cannabis testing.
Because cannabis remains a Federal Schedule 1 drug, a positive test result based upon legal recreational use, legal CBD use, or legal medical marijuana use by employees in these titles would not be permissible.
Lastly, it would not be appropriate to test for cannabis use for employees in any titles outside those meeting the criteria above, including for reasonable suspicion of use on the job, until such time that cannabis testing can detect when the use occurred.
Updating Examination and Title Information
The Department will work with agencies to update appropriate examination announcements, title standards, physical/medical standards, and other appropriate documentation based on the determinations outlined in this bulletin.
Agencies must update any internal and external documents or notifications based on the title determinations using the language below.
Police Officer and Peace Officer (Carry Firearms) Titles or Titles Where Cannabis Testing Will Continue for All Candidates
“Cannabis use is not permitted for employees in this title. Cannabis use will be tested for during the pre-employment screening process and may be the basis for disqualification for employment or may be a basis for removal from employment.”
Titles Subject to Other Federal Standards Where Cannabis Testing Will Continue Based on Employee Assignment
“Cannabis use is not permitted for employees in this title and assignment. Cannabis use will be tested for during the pre-employment screening process and may be the basis for disqualification for employment or may be a basis for removal from employment.”
If you have questions regarding information contained in this bulletin, please email Jessica.Rowe@cs.ny.gov.