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.
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.