This blog was originally published in Forbes on April 6, 2021.
After years of debating and advancing marijuana laws, beginning with legalizing the medical use of cannabis in 2014 to decriminalize minor marijuana-related offenses in 2019, lawmakers in New York have gone all-in legalizing the recreational use of marijuana by adults. On March 31, 2021, New York Governor Andrew Cuomo signed into law the New York State Cannabis/Marijuana Regulation & Taxation Act, reducing barriers to employment for users and encouraging employers to rethink their positions on marijuana.
The Act creates an Office of Cannabis Management (OCM), an independent arm of the New York State Liquor Authority’s Division of Alcohol Beverage Control. The OCM will be responsible for operationalizing and regulating marijuana within the state and will assume duties over the state’s existing medical marijuana program. The OCM is expected to establish standards for cultivation, create licensing programs for distributors, processors, and retailers of recreational marijuana, adopt advertising and marketing rules and implement a social equity program that will assist individuals disproportionally impacted by cannabis enforcement.
While legalization is effective immediately, you won’t find shops opening in your neighborhood until the OCM has implemented the rules necessary to regulate marijuana. Regardless, individuals in New York may currently possess, purchase, share and consume up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis. While it may take months or years for retail sales to start, employers should prepare to comply with the legislation.
Thankfully for employers, the New York State Cannabis/Marijuana Regulation & Taxation Act does not diminish an employer’s ability to maintain a zero-tolerance drug-free workplace. Employers are not required to permit or otherwise accommodate the use, possession, sale, or transfer of cannabis in the workplace and can prohibit employees from being impaired during work hours.
Notably, for users of marijuana, the Act amends Labor Law Section 201-d, protecting workers’ rights to engage in the use of cannabis outside of work. Specifically, the Act requires employers to not discriminate against a worker’s use of cannabis when off-duty, outside of the employer’s facility, and when not using the employer’s equipment or other property. As it relates to an employer’s pre-employment drug screening program, most New York employers may not refuse to hire a candidate based on their legal use of marijuana.
An employer would not violate a lawful recreational marijuana user’s rights based on three specific exceptions:
- An employer may adversely affect a recreational marijuana user’s employment if an employer is required to bar a marijuana user based on a state or federal statute, regulation, ordinance, or other state or federal government mandate.
- If a worker is impaired by marijuana while working, and the worker’s impairment interferes with an employer’s obligations to provide a safe and healthy workplace, an employer may choose to take an adverse employment action.
- Finally, employers who would violate federal law or may experience loss of a federal contract or federal funding may disqualify a recreational marijuana user from hire or employment.
The Act places employers who engage safety-sensitive but non-regulated workers between a rock and a hard place. When gauging the deterioration of a worker’s abilities based on marijuana use, an employer must identify “specific articulable symptoms” of impairment to challenge the worker’s fitness for duty. Even if an individual tests positive for marijuana while at the workplace but does not exhibit “specific articulable symptoms” of impairment, an employer may be barred from impacting that worker’s employment.
Since the legalization of recreational marijuana in New York is effective immediately, employers should quickly rethink their stance on marijuana and the impact of their adjudication policies on lawful marijuana users. Most employers not subject to federal regulation or other express obligation covered by New York’s new law to bar users of marijuana from the workplace will need to address policy statements that lean otherwise. Similarly, employers may want to rethink pre-employment testing for marijuana since a lawful recreational user cannot be barred from employment. Of note, New York City barred employers from testing prospective candidates for marijuana in 2020. Finally, employers will need to carefully develop and implement policies to assess a reasonable suspicion of impairment at the workplace or while on duty to defend an adverse action taken due to a positive test for marijuana. As the state gets underway in implementing its recreational marijuana program, employers can expect to gain clarity behind the intent and enforcement of existing rules and the possible evolution of the law as time progresses.