Cannabis and the Workplace
Cannabis legalization is impacting workplaces across the country. This is especially true in New York as former New York Governor Andrew Cuomo signed the New York State Cannabis/Marijuana Regulation & Taxation Act (MRTA) into law on March 31, 2021 legalizing the use of recreational marijuana for individuals ages 21 and older. Of particular relevance to employers and employees, the MRTA amended Section 201-D of the New York Labor Law. The amendments clarify that cannabis used in accordance with New York State law is a legal consumable product and employers are therefore prohibited from discriminating against workers for their use of cannabis outside the workplace. Medical cannabis usage is also legal in New York and certified medical cannabis patients are deemed disabled under the law; they are therefore protected from discrimination due to their disability and use of cannabis for medical purposes.
We help educate employers and workers about their rights and responsibilities as they relate to this rapidly changing area of law. This includes employment contract reviews and amendments, advisement regarding medical cannabis usage, and assistance with everyday workplace issues as they relate to cannabis such as background checks, allegations of discrimination, updated training requirements, and workplace health and safety protocols.
All employers in New York should consider taking the following actions as soon as possible in response to the state’s legalization of cannabis:
- Review and update any existing employee drug use policies;
- Modify drug testing procedures as needed; and
- Train management and supervisory staff on the legal protections that now exist regarding cannabis use and also the visible symptoms that could be considered impairment due to cannabis.
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Frequently Asked
Questions
No. Only the legal use of cannabis by adults over the age of 21, or certified medical cannabis patients, is protected by New York State law.
Yes, the laws legalizing cannabis usage apply to all public and private employers in New York State, regardless of size, industry, or occupation.
No, not in most cases. There are some exceptions but most employers in New York are not allowed to test prospective or current employees for cannabis usage under MRTA and the New York City Human Rights Law.
Employers are prohibited from discriminating against an employee due to the employee’s use of cannabis as long as the usage was: (1) outside of the workplace, (2) outside of work hours, and (3) did not involve any usage of the employer’s equipment or property.
Yes, recreational cannabis use may be prohibited during breaks and may also be prohibited on the workplace premises. However, medical cannabis usage by certified medical cannabis patients may be permitted.
Yes. An employer may take action against an employee if that employee is demonstrating “specific articulable symptoms” that decrease or lessen the employee’s performance of duties or tasks and/or interfere with the employer’s obligation to provide a safe and healthy workplace, as required by state and federal occupational safety and health law.
The state has not provided a specific list of symptoms of impairment and has instead defined articulable symptoms of impairment as “objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened.” This definition can be open to interpretation and we recommend that employers consult with an attorney when seeking to make determinations regarding impairment due to cannabis. The attorneys at Frontera Law are experienced and available to discuss this with you.
