New York has passed an expansive law to legalize recreational cannabis (a.k.a. marijuana). The law, called the Marijuana Regulation and Tax Act, includes strong employment protections for off-duty use, effective immediately.
The law adds cannabis to New York’s existing lawful off-duty conduct law but carves out a few exceptions. As a refresher, the lawful off-duty conduct law prohibits discrimination against an applicant or employee for engaging in activities or consuming products that are legal, as long as they do so off duty and off the employer’s premises.
As a result, employers cannot refuse to hire an applicant or discipline or terminate an employee because they use cannabis outside of work unless one of the following exceptions applies:
● The employee is impaired by cannabis during work (see below);
● The employer would violate a federal law or lose a federal contract or federal funding; or
● The employer’s action is required by federal or state law or mandate.
To be considered impaired by cannabis during work, an employee has to show “specific articulable symptoms” that either negatively affect their work performance or interfere with the employer’s ability to provide a safe workplace. This means that minor physical symptoms (such as bloodshot eyes) are likely not grounds for adverse action if the employee’s job is not safety sensitive.
Note that while medical cannabis patients were already protected by state disability discrimination law, these more expansive protections apply to them as well.
Since marijuana is only legal in New York for those 21 and older, employees who are under 21 do not have these employment protections.
Employers should review their drug policies and testing procedures and modify them as needed to ensure compliance with the new law. Employers should no longer test applicants for THC (the psychoactive ingredient in cannabis) unless they are required to do so under a different law, a federal contract, or a federal grant. Likewise, if an employer becomes aware of an applicant or employee’s off-duty use, they must refrain from taking action unless one of the exceptions applies.