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

Seyfarth Shaw LLP

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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