
Published Via JD Supra
https://www.jdsupra.com/legalnews/new-york-legalizes-recreational-4414590/
New York Governor Andrew Cuomo signed legislation legalizing recreational marijuana on March 31, 2021. The legalized use of marijuana is effective immediately, even though retail sales of marijuana are not expected to begin until mid-2022. This change potentially immediately impacts a New York employer’s ability to take adverse actions against applicants and employees based on recreational marijuana usage.
The Marihuana Regulation and Taxation Act (MRTA) legalizes and regulates cannabis use and possession for adults who are 21 and older. The MRTA creates a new Cannabis Law and consolidates the laws affecting recreational adult-use of cannabis, medical marijuana, and the cannabinoid hemp program. These programs will be overseen and regulated by a newly created Cannabis Control Board and the Office of Cannabis Management.
Effective immediately, adults who are 21 and older may possess up to three ounces of cannabis and up to 24 grams of concentrated cannabis and may use cannabis except as may otherwise be prohibited by state law. The law does not permit driving while under the influence of cannabis or smoking cannabis in locations where smoking tobacco is prohibited. It also does not require any individual to engage in any conduct that violates federal law, among other things.
Amendment to Legal Activities Law
The most significant provisions for employers are the amendments to Section 201-d of the New York Labor Law. MRTA provides that an employer must adhere to policies regarding cannabis in accordance with Labor Law Section 201-d. This means that New York employers may not refuse to hire, employ, discharge, or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises and while not using the employer’s equipment or other property. However, Section 201-d is amended to say that an employer would not be in violation of that law where the employer takes action related to the use of cannabis based on the following:
- The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental 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 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 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 an 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.