ATTENTION NEW YORK EMPLOYERS: New York Enacts Employment Protections for Off-Duty Adult Cannabis Use

Following closely on the heels of New Jersey [CLICK HERE for our February 24, 2021 eAlert], New York has now legalized adult recreational cannabis use. On March 31, 2021, Governor Cuomo signed the “Marihuana Regulation and Taxation Act” (“MRTA”), which creates a new Cannabis Law and establishes a Cannabis Control Board and Office of Cannabis Management to form a regulated and taxed cannabis industry in New York.Although the MRTA expressly states that it is not intended to limit the authority of employers to enact and enforce policies pertaining to cannabis in the workplace, it does create certain restrictions on that authority. Employers should be aware of the following important points, effective immediately:

1. Employers may not discriminate on the basis of off-duty, off-premises use of cannabis. The new law adds the legal use of cannabis to the protections of New York Labor Law Section 201-d, which prohibits employers from discriminating against an applicant or employee for certain off-duty legal activities. This means that employers may not refuse to hire, terminate, or take other adverse action against an individual who uses cannabis lawfully while off-duty and off-premises. Employers still may enforce policies prohibiting employees from cannabis use or possession during work hours (including paid and unpaid breaks), on employer premises, and while using an employer’s equipment or other property, such as a company car.
2. Employers may prohibit employees from being impaired while working. An employer may prohibit and take adverse employment action where the employee is impaired at work by the use of cannabis. The new law specifically defines impairment as “manifest[ing] 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 workplace, free from recognized hazards, as required by state and federal occupational safety and health law”. Although it is not yet clear what will be considered “specific articulable symptoms” or who is qualified to make this assessment, employers should take care to identify – and, importantly, to document – behavior impacting the employee’s performance or workplace safety prior to taking any adverse action based on suspected cannabis use.
3. Employers also may take adverse action for off-duty usage under certain limited conditions. Employers may take adverse action based on off-duty cannabis usage if: (i) the employer’s actions are required by state or federal statute, regulation, ordinance, or other state or federal government mandate, or (ii) where failing to take such action would cause the employer to be in violation of federal law or result in the loss of a federal contract or federal funding. Employers should carefully review the terms of any such mandate or federal contract or funding provision to determine whether such an exception may apply.
4. Employers may not rely solely on a positive drug test. Although the new law does not expressly address drug testing in the employment context, an employer may only take adverse action for off-duty cannabis usage where the employee is impaired while working (or under one of the limited exceptions discussed above in point 3). Thus, while drug testing for cannabis is not prohibited, most employers may no longer take adverse action against an applicant or employee based solely on a positive drug test without indication of impairment. As a reminder, however, New York City employers have been restricted since May 2020 from testing job candidates for cannabis as a condition of employment, with limited exceptions.
5. Employers may need to revise background check policies. The new law provides for the automatic expungement of certain cannabis convictions no longer criminalized (for example, possessing up to 3 ounces or smoking in a public place where smoking tobacco is allowed). Employers should ensure that their existing criminal background check policies do not include consideration of cannabis-related offenses that are now considered lawful.
6. The medical cannabis program has been expanded. The new law expands the protections provided to medical users of cannabis since 2014 by, among other things, adding to the covered medical conditions for which cannabis may be prescribed and the type of cannabis products patients may use. Medical cannabis users must be afforded the same rights and protections available to injured workers under the workers’ compensation law when such workers are prescribed medications that may prohibit, restrict or require modification of the performance of their job duties and will still be deemed to have a “disability” under the New York Human Rights Law. An employer may continue to enforce policies prohibiting all employees, including medical cannabis patients, from performing their duties while impaired.

If you have any questions relating to the MRTA or would like guidance in reviewing and revising your drug testing, criminal background check, drug-free workplace or other policies, please feel free to reach out to the NFC Attorney with whom you typically work or call us directly.