On March 31, 2021, Governor Andrew Cuomo signed into law the New York State Marijuana Regulation and Taxation Act (“MRTA”), which legalized recreational use of marijuana for adults over the age of 21. Although retail sales of marijuana are not expected to begin until 2022, the legalized use of marijuana became effective immediately. In light of this change, many employers in New York State are now prohibited from taking adverse action or otherwise discriminating against applicants and employees based on their lawful recreational marijuana use.

As explained in our earlier alert, the MRTA establishes an Office of Cannabis Management to oversee and regulate the new adult-use cannabis program, as well as the State’s medical and cannabinoid hemp programs. Among other things, the MRTA also creates a new Cannabis Law which consolidates the laws affecting these programs.

Amendments to NYS Labor Law Section 201-d (Legal Activities Law)

Most notably for employers, the MRTA amends NYS Labor Law Section 201-d, often referred to as the legal activities law, to prohibit an employer from refusing to hire, employ, or license; to discharge from employment; or otherwise discriminate against an individual because he/she uses cannabis lawfully outside of work hours, off the employer’s premises and without use of the employer’s equipment or other property.

With that said, amended Section 201-d provides that an employer would not be in violation of the law where it takes action against an employee 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 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 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.

Practical Considerations

At this time, questions remain as to the application of these exceptions, such as what will be considered “specific articulable symptoms” of impairment under the law. Nonetheless, it is clear that in light of the amendments to Section 201-d, employers should review their existing drug testing policies to ensure they are not discriminating against individuals for their lawful recreational marijuana use. Employers should also determine if they will continue to drug test individuals for marijuana, and if so, under what circumstances.

Harris Beach will continue to monitor and report on any further developments relating to the MRTA.