Seyfarth: New York: Legalized Recreational Use of Cannabis & New Protections for Employees

Seyfarth: New York: Legalized Recreational Use of Cannabis & New Protections for Employees

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On March 31, 2021, New York legalized the recreational use of cannabis, enacting “The Marijuana Regulation and Taxation Act.”

This new law legalizes personal possession of cannabis, home cultivation of cannabis, and allows for the expungement of certain marijuana convictions. Importantly, it also modifies New York Labor Law to impose new restrictions on employers.

New York’s cannabis law provides employment discrimination protection for cannabis users.  Cannabis use is now part of the “off-duty” conduct for which employers cannot take an adverse employment action, similar to off-duty political activities and the like.  Under the amended Section 201-d(2) of the Labor Law, it is now unlawful for an employer to refuse to hire, terminate, or “otherwise discriminate” against an individual for that individual’s use of cannabis, as long as it is within state law.

The new cannabis law carves out three exceptions for employers to take an employment action because of an individual’s cannabis use. Two of the exceptions allow an employer to take an employment action based on an individual’s cannabis use where required by federal or state law, or where federal contracts or federal funding are implicated.

The third exception allows employers to discipline or terminate employees who are impaired at work.  Employers are allowed to take an adverse employment action against an employee who, while at work, “manifests specific articulable symptoms” of impairment from the use of cannabis.  These symptoms could either hurt the employee’s work performance or generally interfere with the employer’s safe and healthy work place.

As a consequence, employers cannot rely on drug tests nor can they rely on knowledge that an employee uses cannabis outside of work to discipline their employees.  Instead, managers and supervisors should be aware of the physical symptoms of possible cannabis impairment.  Employers should also consider adding policies for reporting symptoms of cannabis impairment so that the business is prepared to be able to take adverse employment action if an employee exhibits symptoms of cannabis impairment.


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Editor – Sean Hocking

Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild