On March 31, 2021, Governor Andrew Cuomo signed the Marihuana[1] Regulation and Taxation Act (the “Act”) into law. This bill has both immediate and long-term impacts on various aspects of life in New York State, including the workplace. This article focuses on the immediate workplace implications of the Act. Under the law, adults aged 21 or older may lawfully possess, use, and transfer without compensation, up to three ounces of cannabis and up to 24 grams of concentrated cannabis.
The Act prohibits, with limited exceptions, disciplinary action and discrimination against employees for their lawful use of marijuana. The law creates a private right of action for employees who believe they were discriminated against. Specifically, employers may not take adverse action against an employee because of their:
- Legal use of cannabis before or after their work hours[2] off the employer’s premises and without use of the employer’s equipment or property; or
- Legal use of cannabis during the employee’s legal recreational activities off the employer’s premises and without use of the employer’s equipment or property.
The Act is not intended to limit the authority of employers “to enact and enforce policies pertaining to cannabis in the workplace.” Employers do not violate the law when taking disciplinary action against an employee for their use of marijuana based on the following:
Workplace Use/Possession Can Be Prohibited. Employers may still prohibit marijuana use or possession during work hours, on employer premises and while using an employer’s equipment or other property.
Limited Federal Exceptions. Employers may continue to take adverse action against employees who engage in off-duty marijuana use if: i) so required by state/federal law, regulation, ordinance or other state/federal governmental mandate; or ii) complying with the Act would require an employer to violate federal law or would result in the loss of a federal contract or federal funding. This safe harbor is limited and does not allow employers to discriminate against marijuana users simply because cannabis is illegal under federal law. Rather, specific obligations, if any, such as those under federal government contracts or grants must be considered.
Workplace Impairment Can Be Prohibited. An employer may take adverse action against marijuana users under the Act based on an employee’s workplace “impairment.” However, the employee must manifest specific articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, or such specific articulable symptoms interfere with an employer's obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law. If an employee tests positive in the workplace, but does not exhibit specific articulable symptoms, the employer may be barred from taking an adverse action against the employee.
Impaired Driving Not Protected. The Act does not excuse an individual from driving while impaired by marijuana under New York marijuana DUI/impairment laws.
Employers may still continue drug testing of prospective and current employees. However, pre-employment testing cannot be used to refuse to hire, discharge, or otherwise discriminate against an individual because they test positive for marijuana. Since May 2020, New York City employers have been prohibited from requiring prospective employees to submit to drug testing for the presence of tetrahydrocannabinols or marijuana, except for certain situations. Employers who intend to continue drug testing current employees should review their procedures to make sure they do not take disciplinary action against an employee, except for the limited circumstances outlined above.
Employers should review their drug testing policies, pre-employment screening procedures (including background checks for certain drug-related offenses) and make sure they compliant with the new law. The Labor and Employment Group at Westerman Ball Ederer Miller Zucker & Sharfstein is here to answer any questions and help develop or review policies to ensure compliance with the new law.
[1] The statute uses a less common spelling, “marihuana,” but we will use the term “marijuana” throughout this article.
[2] “Work hours” means all time, including paid and unpaid breaks and meal periods an employee is suffered or permitted or expected to be engaged in work, and all time an employee is actually engaged in work.
