In March 2021, New York enacted the Marijuana Regulation and Taxation Act (MRTA) legalizing recreational cannabis use for adults. The law provides, among other things, that persons 21 years old or older can lawfully possess and use up to three (3) ounces of cannabis and up to twenty-four (24) grams of concentrated cannabis. MRTA also allows persons 21 years old or older to plant and cultivate cannabis in accordance with specific guidelines.
It will likely take some time to implement and structure many aspects of the MRTA. For example, the actual sale of recreational cannabis will likely be delayed while state officials pass additional provisions addressing regulation, licensing, and taxation of sales. However, cannabis legalization has already become a significant and immediate concern in the employment context. Employers and employees must address workplace policies and employee protections under the new law.
Employee Protections
The MRTA expands on the existing protections for an employee’s lawful use of consumable products, such as alcohol and tobacco outside of work. For example, employers usually cannot prohibit employees from smoking tobacco or drinking alcohol legally outside of work. New York Labor Law Section 201-d now specifically protects an employee from discrimination or disciplinary action based on legal use of cannabis in accordance with state law.
Employers cannot refuse to hire, employ, or to discharge from employment or otherwise discriminate against an individual because that individual engages in the legal use of cannabis as permitted under state law. Employers also cannot discriminate in compensation, promotion, or terms, conditions, or privileges of employment because an employee uses cannabis as permitted under state law. However, an employee’s use is only protected when it is:
- Outside of work hours;
- Off the employer premise; and
- Without the use of the employer’s equipment or other property.
While the MRTA restricts an employer from taking disciplinary or discriminatory action against an employee for lawful use, it also includes cannabis-specific exceptions that allow certain employer actions related to an employee’s cannabis use.
Impact on Employers and Exceptions
The law restricts the employer’s ability to discriminate against or discipline an employee for using cannabis as noted above. However, the MRTA expansions recognize that cannabis can adversely affect employee performance and that federal law still prohibits recreational use. As a result, under New York Labor Law Section 201-d, employers can take action against an employee’s or prospective employee’s lawful use of cannabis where one of the following circumstances exist:
- The employer’s actions were required by federal or state statute, regulation, ordinance, or other state or federal mandate;
- An employee is “impaired” by the use of cannabis while working, meaning the employee “manifests 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 obligations to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law”; or
- The employer’s actions would require the employer to commit any act that would cause the employer to be in violation of federal law, or would result in the loss of a federal contract or federal funding.
In the practical situations that employers will likely face, these exceptions are limited and vague. Termination or disciplinary action based on cannabis use is limited to situations where the employer can demonstrate objective, visible signs of impairment that affect job performance or safety, or where the employee is using on the job or with company equipment.
Notably, a positive cannabis test is not listed as an exception allowing employers to take adverse action against an employee or prospective applicant. Accordingly, employers should not reject an applicant based solely on a positive cannabis test. In fact, employers should consider reviewing their drug policies in light of the changes in the law. New York City already prohibits employers from testing job applicants for cannabis usage with certain exceptions, but the MRTA does not have such a provision.
Takeaways for Employers and Employees
Employees must know their rights regarding recreational use of cannabis. This includes understanding the MRTA protections, employer exceptions, and their employer’s workplace policies.
Employers should take proactive steps. Employment policies and procedures should be reviewed to ensure compliance with MRTA expansions, particularly with respect to legal recreational cannabis use and drug testing. Additionally, employers should provide appropriate training to supervisors. Training should include how to avoid discriminatory conduct as well as how to recognize articulable signs that may demonstrate impairment.
This is an evolving area. It will take time for the full impact of legalization to be felt in the workplace. Additional regulations may also be forthcoming clarifying employee and employers’ legal rights and obligations. The short and long-term impacts of this new legislation and ongoing expansions of recreational cannabis use are still evolving. The best course of action is to stay informed on the developments of the MRTA and related legislation. An experienced attorney can help navigate employee and employer concerns in the workplace.
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