Published Via JD Supra Source: https://www.jdsupra.com/legalnews/new-york-law-protects-employee-1275108/ On March 31, 2021, New York Governor Andrew Cuomo signed the “Marijuana Regulation and Taxation Act” into law. This action immediately decriminalizes many instances of adult possession and use of cannabis products, including marijuana, statewide. It will eventually lead to the legal sale of marijuana through licensed dispensaries. Among the immediate impacts, now New York law protects employee marijuana use.

Legalization of Adult Recreational Marijuana Use

The extensive Marijuana Regulation and Taxation Act begins a complex process of legalizing the sale of cannabis for adult consumption in New York. Selling marijuana, except as licensed to certified medical marijuana patients, will remain illegal until sometime in 2021. However, New Yorkers aged 21 and up can immediately begin to use marijuana without violating state law. The New York penal law is immediately amended to expressly declare the following “lawful” for people aged 21 or older:
  • Possessing, displaying, purchasing, obtaining, or transporting up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
  • Transferring, without compensation, to a person 21 years of age or older, up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
  • Using, smoking, ingesting, or consuming cannabis or concentrated cannabis (unless otherwise prohibited by state law).
  • Possessing, using, displaying, purchasing, manufacturing, transporting, or giving to any person 21 years of age or older cannabis paraphernalia or concentrated cannabis paraphernalia.
  • Assisting another person who is 21 years of age or older, or allowing property to be used, in any lawful acts listed above.
There are some restrictions on marijuana use, such as smoking or vaping it in most public places and automobiles.

Protections for Employee Marijuana Use

New York Labor Law has long protected employees’ off-duty conduct, including lawful use of consumable products. For example, employers usually cannot prohibit employees from smoking tobacco or drinking alcohol outside of work. The Marijuana Regulation and Taxation Act amends the existing protections to address employee marijuana use. Section 201-d of the New York Labor Law now specifically protects an employee from job discrimination based on the “legal use of consumable products, including cannabis in accordance with state law.” The protection extends to use that is all of the following: (a) outside of work hours, (b) off the employer’s premise, and (c) without the use of the employer’s equipment or other property. “Cannabis” means “all parts of the plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”

Limits on Employee Cannabis Protections

Notwithstanding the new state law, marijuana remains a controlled substance (i.e., illegal drug) under federal law.  And the Legislature seemingly acknowledges that marijuana can have a behavioral impact on individuals who consume it. The New York Marihuana Regulation and Taxation Act attempts to address those realities with potential exceptions to the Labor Law protections for employee cannabis use. An employer does not violate section 201-d of the Labor Law based on employee cannabis use when:
  • The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal government mandate;
  • The employee is impaired by the use of cannabis, 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 work place, free from recognized hazards, as required by state and federal occupational safety and health law; or
  • The employer’s actions would require such 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.
Unfortunately, these exceptions are relatively vague in light of the situations employers are likely to face. For example, few, if any, other laws expressly prohibit an employer from employing someone who consumes marijuana outside of work. And it is practically difficult to measure whether someone is sufficiently impaired by cannabis while working. Under the New York medical marijuana law, the federal Drug-Free Workplace Act has been referenced as a potential barrier to some employees using marijuana for medicinal purposes. However, there are still open questions as to that law’s relevance on the subject, including recreational marijuana consumption.

Employer Next Steps

The legalization of marijuana use (with limits) and the protections for employee marijuana use are effective immediately. Accordingly, all New York employers should consider taking the following actions.

Review Drug Use Policy

Do you have a policy that includes marijuana or other cannabis products as prohibited substances? If so, you may want to remove that reference or limit it to workplace use and impairment.

Modify Drug Testing Procedures

Pre-employment drug testing for marijuana is probably now unwise in almost all cases. It may be federally mandated for some categories of employees, such as those in the transportation industry. But, for most workers, a positive marijuana test would only provide employers with information that they should not be using as the basis for hiring decisions. Drug testing for marijuana during employment will also now be problematic. Because of how long the drug can stay in one’s system, a positive test will often not guarantee workplace use or impairment. Employers will likely need to rely on personal observations to prove these unprotected scenarios.

Train Supervisors

Remember that employers may still discipline employees for using or possessing marijuana at work or working under the influence of cannabis if it negatively affects performance or safety. Employers with concerns about this occurring need to ensure supervisors are both aware of the legal restrictions and understand the visible symptoms that may demonstrate impairment. Discussion of marijuana use by employees will likely become more prevalent in the workplace with the new legal protections. Employers may choose to restrict this subject in some cases. But, either way, knowledge of employees’ use generally cannot be used against them. Supervisors should avoid inquiring into this subject so that employees otherwise disciplined will not point to this factor as an alleged basis of discrimination.

Stay Informed

We are at the very beginning of understanding what legal recreational use of marijuana will mean for New York workplaces. Additional regulations may be on the way. And we’ll gain a better understanding of how various constituents will handle the employee marijuana use protections over time.