In headline grabbing news, on March 31, 2021, Governor Cuomo signed the Marihuana Regulation and Taxation Act (MRTA), legalizing the production, sale, and use of cannabis (see our prior LEGALcurrents regarding the legislation here). Even though it may take a year or more before retail sales are up and running, the legislation included immediate changes to the Penal Law—legalizing limited recreational use and possession of cannabis, for individuals 21 years of age or older; and the Labor Law—specifically protecting an employee’s legal off-duty use of cannabis.
Importantly for employers, the MRTA immediately amended New York Labor Law Section 201-d, which generally prohibits discrimination against employees for lawful off-duty conduct. Under the amended law, it is unlawful for an employer, “to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of … an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property.” In essence, this means that employers are prohibited from considering an applicant or employee’s legal (under state law) off-duty marijuana use in making any employment decisions.
There are, however, some notable exceptions to this non-discrimination provision that would allow an employer to take an adverse action against an employee for the lawful use of cannabis, including the following:
- the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental 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.
Of course, as both this protection and related exceptions are new, much remains to be determined as far as how they should or will be interpreted.
Amended Labor Law Section 201-d will also likely have an impact on employment-related marijuana testing. At this point, pre-employment marijuana testing, unless otherwise required by law, may be unwarranted because the test result, by definition, will only show off-duty conduct. Marijuana testing during employment should be addressed on a case-by-case basis, and it may be difficult to prove a positive result is not due to lawful off-duty cannabis use. Employers should immediately review their drug-related policies and practices, including drug testing requirements, to ensure they are and will be in compliance with the employment-related consequences of the MRTA.
Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the legislation described above, please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.
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