New Jersey/New York Marijuana Legislation and Paid Time Off for COVID-19 Vaccination
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Dear Clients, Colleagues and Friends,
We at Moskowitz & Book, LLP are excited to see pandemic conditions improve with so many people vaccinated and free to move about and mingle. We look forward to an end to the global pandemic with good health for all and great potential for growth and profit.
We would like to take this opportunity to say farewell to our colleague and friend, Jennifer Kim. Jennifer was a tremendous asset to our firm the past few years and especially helpful researching the many developments through the COVID-19 pandemic.
We also want to welcome the newest member of our team -- Molly Smithsimon, joining us as Counsel. Molly has close to twenty years of experience representing individuals, classes of individuals, and companies in matters including employment discrimination; wage claims; and tort and contract disputes. She also represents executives and employees in negotiating employment contracts, severance pay, and separation agreements. Molly is a certified mediator and supports resolving litigation through alternative dispute resolution when appropriate.
While there have been many developments in employment law in 2021, the most notable changes to the law in New York (NYS) and New Jersey (NJ) are related to marijuana and the COVID-19 vaccine. Please read our summaries below.
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New Jersey Marijuana Legislation
Parts of the NJCREAMMA went into effect immediately. The provisions of NJCREAMMA that relate to the workplace will become effective as of August 21, 2021.
Regarding the workplace, the NJCREAMMA prohibits NJ employers from refusing to hire job applicants, terminating employees and taking adverse employment action against employees based on their use or nonuse of cannabis items, or based solely on a positive result of a drug test for cannabis items. A related NJ law (the “Decriminalization Law”), signed by Governor Murphy the same day, prohibits employers from considering certain cannabis-related offenses when deciding to hire or fire employees, or make other employment-related decisions.
The NJCREAMMA does not, however, prevent employers from choosing to maintain a drug- and alcohol-free workplace. Employers may prohibit employees from using, consuming, being under the influence, possessing, selling or taking other actions regarding cannabis or cannabis items in the workplace or during work hours. Employers may take adverse employment actions against employees who engage in such prohibited conduct in the workplace or during work hours.
The NJCREAMMA also provides protection for employers who are federal contractors, and who may be required by federal law, which has not legalized recreational marijuana, to make employment decisions based on positive drug tests.
Although the NJCREAMMA prohibits most employers from taking adverse action based solely on a positive test for cannabis, the law permits employers to test employees for cannabis in the following circumstances:
- upon reasonable suspicion of an employee’s usage of a cannabis item while engaged in work or during work hours;
- upon finding any observable signs of intoxication related to usage of a cannabis item;
- following a work-related accident subject to investigation by the employer;
- as part of random drug testing that may be permitted by NJ law;
- as part of a pre- employment screening; or
- as part of regular screening of current employees to determine use during work hours.
These drug tests must be backed by scientifically reliable and objective testing methods and processes, such as blood, urine, or saliva testing, and a physical exam conducted by an individual certified as a “Workplace Impairment Recognition Expert” (“WIRE”) to check the individual’s state of impairment. The WIRE may be an employee who completes a Drug Recognition Expert Program (provided by a school approved by the Police Training Commission or program by any other government or private agency) or an individual who becomes certified as a WIRE and contracts to perform services on behalf of the employer.
Employers may use the results of a drug test that meets the law’s requirements when considering adverse employment action against an employee. However, due to the provisions of the law discussed above, the employer should not base an adverse employment action solely on the results of the drug test. Rather, the employer should also be able to show that the employee violated a workplace policy, such as using cannabis items in the workplace or reporting to work under the influence of marijuana.
Meanwhile, employers should update their workplace policies and handbooks to comply with the NJCREAMMA and train their managers and supervisors regarding the new anti-discrimination and drug-testing laws. Employers should seek legal counsel regarding such policies and before taking adverse employment actions based on cannabis use, especially when such actions involve aspects of the NJCREAMMA – such as the permissibility of terminating an employee with or without a drug test – that likely will be clarified by future regulations.
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New York Marijuana Legislation
About a month after New Jersey legalized recreational use of marijuana by adults age 21 and over, New York did the same. New York’s Marihuana Regulation and Taxation Act (the “MRTA”) was signed by Governor Cuomo and went into effect on March 31, 2021.
Among its provisions, the MRTA protects employees from employment discrimination based on their off-duty lawful use of recreational marijuana.
Section 201-d of the New York State Labor Law generally prohibits employers from refusing to hire applicants, terminating employees, or otherwise discriminating against applicants and employees based on off-duty lawful conduct. Section 201-d defines off-duty conduct as conduct outside of working hours, off the employer’s premises, and while not using the employer’s equipment or other property. The MRTA amended Section 201-d to include, as lawful conduct, the use of cannabis in accordance with state law. Accordingly, with some exceptions, employers may not refuse to hire applicants, terminate employees, or otherwise discriminate against applicants and employees based on their use of cannabis in accordance with state law outside of working hours, off the employer’s premises, and while not using the employer’s equipment or other property.
At the same time, the MRTA expressly recognizes the authority of employers to “to enact and enforce policies pertaining to cannabis in the workplace.” This is consistent with Section 201-d(4) of the Labor Law, which permits an employers to take adverse employment action based on an established substance abuse or alcohol program or workplace policy. As such, employers may establish policies that, for example, prohibit employees from reporting to work under the influence of cannabis (even if used off-duty), or that prohibit employees from using cannabis during working hours, on the employers’ premises or while using the employers’ equipment or property.
Further, the MRTA adds new Section 201-d(4-a), which permits employers to take adverse employment actions for off-duty cannabis use in the following situations:
- The employer’s actions were required by state or federal statutes, regulations, or mandates;
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The employee is “impaired” by cannabis use (i.e., employee "manifests specific articulable symptoms" that have a negative effect on the employee’s work performance and/or interfere with the employer’s legal duty to maintain a safe and healthy workplace); or
- The employer’s actions would require such employer to commit any act that would violate federal law or would lead to the loss of a federal contract or funding.
Section 210-d of the Labor Law permits the State to seek injunctions and civil penalties against employers who violate that Section, and permits employees to sue their employers for such violations.
Unlike the NJ cannabis law, the MRTA does not establish rules for testing applicants or employees for cannabis use. Employers who do such testing, however, should be mindful of the fact that the MRTA likely makes it unlawful for an employer to reject an applicant based on a positive test result. The MRTA may also make it unlawful for an employer to discipline an employee who tests positive for cannabis use but does not show signs of impairment as defined by the law. New York City employers, both public and private, should be aware that, since May 10, 2020, they have been prohibited from conducting pre-employment screening for marijuana for most job applicants.
The MRTA established an Office of Cannabis Management which, along with various state agencies, is expected to issue regulations to implement the new law. We will keep track of those regulations that affect workplace rights and policies, and especially regulations that may answer open questions such as what it means for an employee to "manifest specific articulable symptoms" of cannabis use and whether the MRTA will be interpreted to prohibit pre-employment or post-employment drug testing.
Meanwhile, employers should update their drug-free workplace and drug testing policies, and any employee handbooks, to conform to the MRTA and train managers and supervisors on the law’s anti-discrimination provisions. Employers should seek legal counsel regarding such policies and before taking adverse employment actions based on cannabis use, especially when such actions involve aspects of the MRTA – such as the meaning of impairment and the significance of positive drug tests – that may be clarified by future regulations.
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NYS Employees Entitled to Paid Time Off for COVID-19 Vaccination
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From March 12, 2021, until December 31, 2022, all New York employees are entitled to take paid time off to receive COVID-19 vaccinations. A new law, signed by Governor Cuomo on March 12th, granted this paid leave by adding New York Labor Law Section 196-C for private employees and Civil Service Law Section 159-C for public employees
All NYS employers are required to provide employees with a paid leave of absence from work “for a sufficient period of time, not to exceed four hours per vaccine injection” unless the employer authorizes additional time off for COVID-19 vaccinations. Unionized workers may be entitled to more time off for vaccines according to their collective bargaining agreement (“CBA”). However, if the CBA waives such leave rights for COVID-19 vaccination purposes, the CBA must expressly refer to this new law.
Notably, the law provides up to four (4) hours of paid leave “per vaccine injection.” This means that employees who receive the Pfizer or Moderna vaccines, which currently require two doses, will be eligible for a maximum of eight (8) hours paid time off from work. Employees who receive the Johnson & Johnson vaccine, which requires only one dose, will be eligible for a maximum of four (4) hours paid time off from work.
Paid time off for COVID-19 vaccinations must be provided in addition to any other sick leave provided by the employer, including paid sick leave under NYS law. Employers must pay employees their regular rate of pay for the hours they are absent from work to receive the COVID-19 vaccination. Further, the law prohibits employers from discriminating or retaliating against any employees exercising their leave rights to receive the vaccination.
Unlike similar laws, such as the NYS voting leave law, this vaccination leave law does not specify whether employees must provide advance notice to their employers of the need for time off, or whether employers may require employees to take their leave at the start or end of their shifts. It is still unclear whether employers may require employees to provide proof of vaccination. The NYS Department of Labor might issue regulations or guidance that fills in such gaps.
Despite the lack of regulations, employers must provide their employees with paid time off for COVID-19 vaccination. Employment handbooks and policies should be amended to reflect this vaccination leave law. Managers, supervisors, and human resources personnel should be trained on this leave law, especially now that COVID-19 vaccinations are available to the general public age 16 and older.
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Paid Time Off for NYS Employees for COVID-19 Vaccination
UPDATE: Governor Cuomo signed the Bill on March 12, 2021. The Bill took effect immediately upon the Governor's signature. The New York State ("NYS") Legislature passed a bill ("Bill") that would allow employees of public and private employers to...
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