
Published Via JD Supra
New York’s Marijuana Regulation and Taxation Act legalized recreational cannabis in New York State on March 31, 2021. While it will take some time to organize and implement many aspects of the law—such as the issuing of registrations, licenses, and permits to sell and distribute cannabis—there are immediate consequences related to employee cannabis possession and use that took effect upon Governor Andrew Cuomo’s signature.
Effective March 31, 2021, the following acts are lawful for persons 21 years of age or older:
- Possessing, displaying, purchasing, obtaining, or transporting up to three ounces of cannabis.
- Transferring, without compensation, to a person 21 years of age or older, up to three ounces of cannabis.
- Using, smoking, ingesting, or consuming cannabis or concentrated cannabis unless otherwise prohibited by state law.
- Possessing, using, displaying, purchasing, obtaining, manufacturing, transporting, or giving to any person 21 years of age or older cannabis paraphernalia or concentrated cannabis paraphernalia.
- Planting, cultivating, harvesting, drying, processing, or possessing cultivated cannabis in accordance with specified guidelines.
- Assisting another person who is 21 years of age or older, or allowing property to be used, in any of the acts described in (a) through (e) above.
IMPACT ON EMPLOYMENT LAW
The new law limits an employer’s ability to discipline or terminate its employees based on their use of cannabis, except in certain (vague) circumstances. Specifically, the law modifies New York Labor Law (NYLL) Section 201-d to make it unlawful for any employer to refuse to hire, refuse to employ, or to discharge from employment or otherwise discriminate against an individual where the individual engages in the legal use of cannabis: (1) outside of working hours, (2) off of the employer’s premises, and (3) without the use of the employer’s equipment or other property. While the law severely restricts an employer from taking disciplinary measures when an employee uses cannabis, it also includes cannabis-specific exceptions that allow an employer to take action related to an employee’s use of cannabis. Unfortunately, the exceptions are fairly vague and limited. Indeed, according to the law, an employer may only take action related to the employee’s use of cannabis where- 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 interfere with an employer’s obligation 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 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.
PENALTIES FOR VIOLATIONS
Penalties for the employment provisions of the recreational marijuana law are governed by NYLL Section 201-d. Under that section, the attorney general can apply for an order to enjoin or restrain an employer from committing further violations of the law, and a court may impose a civil penalty on the employer in the amount of $300 for the first violation, and $500 for each subsequent violation. NYLL Section 201-d also permits an aggrieved individual to bring a claim against an employer and to seek equitable relief and damages.INTERACTION WITH NEW YORK CITY HUMAN RIGHTS LAW
Effective May 10, 2020, New York City implemented a law prohibiting most New York City employers from requiring job applicants to submit to preemployment drug testing for the presence of marijuana as a condition of employment, with certain exceptions. Read more about the New York City law. Importantly, New York City’s law may be preempted by New York State’s recreational marijuana law, requiring New York City employers to reevaluate their preemployment drug testing policies and procedures. Under the New York City marijuana law and its regulations, certain classes of employers and positions are allowed to require an applicant to submit to testing for the presence of any marijuana or THC in the applicant’s system as a condition of employment. Specifically, the New York City law exempts from its requirements- police and peace officers;
- certain construction workers covered by the New York City Building Code and New York Labor Law;
- any position requiring a commercial driver’s license;
- any position “requiring the supervision or care of children, medical patients or vulnerable persons” as defined by the New York Social Services Law; and
- “any position with the potential to significantly impact the health or safety of employees or members of the public,” pursuant to regulations adopted by the Department of Citywide Administrative Services and the New York City Commission on Human Rights (NYCCHR).
- the position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
- the position requires that an employee regularly operate heavy machinery;
- the position requires that an employee regularly work on or near power or gas utility lines;
- the position requires that an employee operate a motor vehicle on most work shifts;
- the position requires work relating to fueling an aircraft, providing information regarding aircraft weight and balance, or maintaining or operating aircraft support equipment; or
- impairment would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.