February 23, 2023
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The Impact of New York State’s Legalization of Recreational Marijuana’s on Workplace Policies and Protections

In March 2021, the Marijuana Regulation and Taxation Act (MRTA) was signed into law, legalizing recreational marijuana for adults in New York State. To address how marijuana legalization would affect workplace policies, the MRTA included amendments to New York Labor Law § 201-D. The amendments, which apply to all public and private employers in New York State, provide protections for employees who engage in legal marijuana use while also outlining permitted employer actions.

Under Section 201-D, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours and without use of the employer’s equipment or property. As such, it is generally unlawful under the MRTA for an employer to:

  • refuse to hire, employ, or license someone 
  • terminate the employment of an employee or 
  • otherwise discriminate through compensation, promotion, or terms, conditions or privileges of employment because of an employee’s lawful use of recreational marijuana.

Taking into consideration the health and safety of employees and customers, the MRTA also added subsection 4-a to NYLL § 201-D, which provides guidance as to the actions employers may take. The added subsection permits employers to take an employment action or prohibit employee conduct if: 

  • An employer is required to take such action by state or federal statute, regulation or ordinance, or other state or federal governmental mandate.
  • The employer would be in violation of federal law
  • The employer would lose federal contract or federal funding
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.

The Department of Labor’s Frequently Asked Questions about these amendments expounds upon the meaning of “specific articulable symptoms.” The Department notes that these symptoms must be objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened. The Department also cautions employers not to confuse such indications with potential employee disabilities, even if those disabilities are unknown to the employers, as the employee may be protected under state or federal law. 

Testing employees for cannabis usage cannot serve as a basis of an employer’s conclusion that an employee was impaired by the use of cannabis as such tests do not indicate current impairment. 

Under New York State law, testing employees for marijuana is only permitted if such testing is required or mandatory under federal or state law. For instance, the Department of Labor’s FAQ’s highlight that drug testing is mandatory for drivers of commercial motor vehicles and for-hire motor vehicle carriers in accordance with the Code of Federal Regulations, Part 382. New York City law is more specific about the positions where drug testing is permitted. For example, Section 8-107(31)(b) of the New York City Human Rights Law says that pre-employment testing is permitted for certain occupations such as police officers, peace officers, positions requiring a commercial driver’s license, positions requiring supervision or care of children, medical patients or other vulnerable persons and any position with potential to significantly impact the health or safety of employees or other members of the public. 

In addition, employers cannot make an employee agree to, or promise, that they will not use marijuana outside of work as a condition of hiring or continued employment. Employers can only enforce prohibition of cannabis use during work hours, which includes paid and unpaid breaks and meal periods, even if the employee leaves the worksite during those breaks.

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