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Into the Weeds: A Q&A for New York Employers

By Fox Rothschild, LLP

For New York employers, the new state law that legalizes cannabis also modifies the New York Labor Law (NYLL) to impose restrictions on employers and add protections for employees concerning the recreational use of marijuana.

Signed into law by Gov. Andrew Cuomo on March 31, 2021, the New York Marihuana Regulation and Taxation Act 1 (the Act) legalizes for adults the personal possession and home cultivation of marijuana, allows for the expungement of certain marijuana convictions and sets up a framework for businesses to apply for grow and distribution licenses.
 
For employers, effective immediately, the Act prohibits discrimination against workers based on the legal use or possession of marijuana products while off duty and outside the workplace subject to a few exceptions discussed below.
 
The law also provides a private right of action for employees who claim to be harmed by such alleged discrimination.
 
Even before Gov. Cuomo signed the Act into law, the NYLL protected certain “off-duty” conduct by employees, including the use of “consumable products” such as alcohol and tobacco. Now, the Act explicitly amends the NYLL to protect employees from discrimination based on the “legal use of consumable products, including cannabis in accordance with state law” (emphasis added) 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 other words, an employer in New York State may not refuse to hire an applicant, or discipline or terminate an employee, because that applicant/employee lawfully consumed marijuana outside of the workplace during non- work hours when an applicant/employee is not using the employer’s equipment and the consumption of marijuana does not impact the employee’s ability to perform necessary job duties.
 
Notwithstanding the Act’s amendments to the NYLL prohibiting discrimination against employees who legally use marijuana, employers must still take into consideration the health and safety of their employees and customers by ensuring that employees are not performing duties under the influence of any substance – legal or illegal – that could impair their judgment or performance, and the Act ensures that employers are not required to allow employees unfettered use of marijuana that may impact their work performance. 
 
The Act makes clear that an employer would not violate the NYLL by taking action based on an employee’s use of marijuana if: 
 
  • the employer’s actions were required by New York State or federal law, regulation, ordinance, or any other New York State or federal governmental mandate; 
  • the employee is impaired by the use of marijuana while working such that there is a decrease in the employee’s performance of their job duties; or
  • the employer’s actions would require it to commit an action that would cause it to be in violation of federal law. The Act further provides that it is not intended to limit the ability of an employer to create and enforce policies pertaining to marijuana use in the workplace. 
 
What restrictions, then, are employers permitted to impose on their employees concerning use of marijuana now that it is legal in New York and what other considerations do they need to take into account when implementing general workplace policies and practices? Below are some common questions and answers that have arisen since the Act’s passage. While by no means comprehensive, they are a good place for employers to start to ensure compliance with the Act.

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