What Employers Should Know About New York's Marijuana Laws

As the legalization of recreational marijuana use rises among states, employers may also have to pivot to abide by changing employment/labor laws and updated guidance.

Back in March 2021, New York State passed the Marijuana Regulation and Taxation Act (MRTA). The act officially legalized recreational cannabis use in New York and established the Office of Cannabis Management (OCM) to regulate the adult-use cannabis market. It also made changes to the New York medical marijuana law and New York Labor Law, regarding an employer’s rights and obligations regarding their employees’ use of marijuana.

“The law is not intended to limit the authority of an employer to establish policies and procedures prohibiting employees from being impaired by cannabis in the workplace, and employers are not required to engage in any conduct that would otherwise violate federal law or cause the employer to lose federal funding.”

The law does however caution employers and require them to reassess their current policies around use and testing should they have any in place.

Labor Laws

The MRTA amends New York's Labor Laws and prohibits an employer from terminating an employee, refusing to hire someone, and discrimination of pay/privileges based on their use of cannabis outside of the workplace and work hours.

Exceptions

The law does provide exceptions allowing employers to take adverse actions against an employee if while working the employee "manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of their tasks."

Examples such as smelling of cannabis or testing positive for cannabis do not apply. OCM makes a note that “only objectively observable indications that an employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited.”

Remote Work & Work Hours

The lines are blurry when it comes to work from home, as private residences are not considered a “work site.” However employers may prohibit cannabis use during “work hours” including breaks and meal periods.