On March 31, 2021, New York State enacted the Marijuana Regulation and Taxation Act (MRTA), which legalizes adult cannabis use in New York. While the MRTA is generally known for legalizing the use of cannabis in a private dwelling or at a state-licensed consumption site, it also has provisions affecting the workplace. The MRTA amended Section 201-D of the New York Labor Law to prohibit employers from discriminating against employees engaging in certain activities. Because of this amendment, on October 21, 2021, the New York State Department of Labor (NY DOL) issued guidance for employers regarding recreational adult cannabis use by employees, both in and outside the workplace.
Who Does the MRTA Apply To?
The MRTA, which includes the amended New York Labor Law Section 201-D, applies to all public and private employers in New York State, regardless of industry or size. The MRTA does not apply to independent contractors, volunteers, students who are not classified as employees (e.g., unpaid interns), and employees under the age of 21. Notably, the MRTA only addresses adult recreational cannabis use because, under a separate act, the New York State Medical Marijuana Program, employees utilizing cannabis for medical purposes must be treated as having a disability and are protected from discriminatory action based solely on their status as medical cannabis patients. Illegal cannabis use by any individual, however, is still not protected (e.g., the use of cannabis by individuals under the age of 21, selling cannabis without a license, or driving under the influence of cannabis).
Employer Conduct Under the MRTA
Cannabis Use While "On the Job"
Employers are not required to allow adult recreational cannabis use at the employer's premises or during work hours. An employer may even take disciplinary action, including termination, against employees who demonstrate symptoms of cannabis use that diminish their work performance during work hours. However, an employer must point to specific "objectively observable indications" that the employee is impaired. The NY DOL has highlighted examples of "objectively observable indications," including an employee operating heavy machinery in a reckless manner. Importantly, an employer's observation of potential cannabis use by an employee, such as the smell of cannabis, is, on its own, insufficient grounds for taking an adverse employment action against the employee.
Employers are prohibited from discriminating against prospective and current employees based on the employee's legal cannabis use. Meaning employers cannot refuse to hire, discharge, or otherwise discriminate against an employee's terms and conditions of employment because of the individual's legal cannabis use outside of work hours, off of company premises or property (such as company vehicles). Employers may not require their employees to refrain from cannabis use as a condition of hire or continued employment.
Employers are prohibited from drug testing employees for cannabis as a basis for articulating present impairment unless (1) the employee is showing a decrease in the performance of their job duties or tasks, (2) a federal or state law requires drug testing for the position, or (3) a federal or state law makes it a mandatory requirement of the position. If an employer intends to drug test its employees, the employees should be informed, in writing, of the reason(s).
Cannabis Use Policies
Employers are strongly encouraged to implement policies describing what will and will not be tolerated from their employees. Such policies should include when cannabis use is or is not allowed, where cannabis may or may not be used, testing policies, and potential disciplinary action that may be taken if an employee's cannabis use is found to be in violation of the policy.
Observable indications of cannabis use may be an indication that an employee has a federally protected and/or state-protected disability (i.e., medical cannabis patients), even if such disability is unknown to the employer. Employers should be cognizant of which employees have a reasonable accommodation of medical cannabis use and how to help them receive an accommodation through the employer's interactive reasonable accommodation process.
Work-from-Home Cannabis Use Policies
An employee's private residence is not considered a work site under the MRTA, regardless of the employer's work-from-home policies. However, if an employer institutes a policy prohibiting cannabis use during work hours, they may discipline the employee if the employee displays articulable symptoms of cannabis impairment during work hours such that their performance of essential duties or tasks is diminished.
Employers are encouraged to read the MRTA and NY DOL guidance in full and review their current drug policies. Should employers have any questions about how to comply with the MRTA's requirements or their current policies regarding cannabis, they should contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.
* The authors of this article thank Samantha Furman, law clerk, for her assistance in preparing this article.
© 2021 Venable LLP. Using, distributing, possessing, and/or selling marijuana is illegal under existing federal law. Compliance with state law does not guarantee or constitute compliance with federal law. This informational overview is not intended to provide any legal advice or any guidance or assistance in violating federal law.