New York Joins Growing Trend of Marijuana Legalization, Welcomes New Protected Class

Posted on: April 16, 2021
In: Labor & Employment

By: Colby Berman & Peter T. Shapiro

Joining other states on the marijuana bandwagon (most recently, New Jersey), New York has officially legalized recreational use of marijuana for adults aged 21 and older. The Cannabis/Marijuana Regulation and Taxation Act (MRTA), signed by Governor Cuomo on March 31, 2021, allows adults to possess, purchase, display, obtain, and transport marijuana in limited quantities, effective immediately. The law allows adult consumption in any form (i.e., smoke, vape, ingestion, etc.), in any place in which tobacco use is permitted. 

Of note for employers, the MRTA creates a new protected employee class. Employers are prohibited from discriminating against employees and applicants based on their off-duty use of marijuana. Notably, the new law applies to all employees, regardless of the safety requirements or concerns surrounding the employee’s job duties. 

The law also creates a new class of individuals entitled to reasonable accommodations in the workplace. Since medical practitioners are now able to recommend medical marijuana for treatment of any condition, the possible realm of “certified medical marijuana users” has been expanded to include more than just individuals suffering from a “serious medical condition.” Because certified medical marijuana users are entitled to reasonable accommodations in the workplace, employers must engage in an interactive process whenever an employee requests reasonable accommodations on this basis. 
    
Even in light of the expansive law, employers are still allowed to prohibit marijuana use during work hours, on company property, and while an employee is using company equipment or property. Employers may also take adverse action against employees for marijuana use in limited situations. An employee “manifest[ing] specific articulable symptoms while working” that indicate the employee is impaired by marijuana may be properly subject to adverse action. Employers should consult with counsel to ensure any marijuana testing is within the confines of the law, as the law is far from clear as to what constitutes “impairment.” Finally, the law’s safe harbor provisions allow an employer to take adverse action for off-duty use of marijuana if doing so would be required by a state or federal statute, or if failing to take adverse action would violate federal law. 

Any drug testing protocols used by employers in hiring or to test New York employees must be reevaluated in light of New York’s MRTA. It would be perilous to reject applicants or terminate or discipline employees based on positive marijuana test results. Moreover, in view of the data suggesting that off-duty marijuana use may present a positive test result hours or days later, the testing is likely not effective to confirm suspicions of working while impaired.

While there is still a need for regulatory guidance to clarify certain aspects of the law, the major takeaways are clear. Under the MRTA, an employee’s use of marijuana is no longer paramount to trigger adverse employer action. Instead, employers may only concern themselves with on-duty marijuana use and instances of impairment while working due to marijuana use. Particular attention must be paid by employers that conduct drug tests because a positive marijuana test alone without other evidence of impairment will not suffice as a basis to take adverse action. 

For more information on the MRTA, contact the authors of this post. Subscribe to this blog to receive email alerts when new posts go up. 

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