New York's Legalization of Marijuana Includes Protections for Workers

New York recently enacted the Marihuana Regulation and Taxation Act (yes, the statute spells it marihuana), which legalizes recreational marijuana use by adults. The Act also contains related protections for employees, which employers in the Empire State need to comply with to avoid potential liability.

Under the Act, employers are prohibited from discriminating against workers based upon the legal use or possession of cannabis products, while off-duty and outside the workplace. There are limited exceptions to this prohibition related to federal laws and federal contracts. The Act also creates a private right of action for employees who believe they were discriminated against in violation of the Act.

Employers are still permitted to prohibit, and take adverse action against an employee, for the use or possession of marijuana at work. Employers are also still permitted to prohibit workplace impairment, which is specifically defined in the law as occurring when “the employee manifests articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law.”

Although the Act does not prohibit drug testing, employers cannot reject an applicant or take adverse action against an employee, based solely on testing positive for marijuana use or the use of marijuana outside of work. For an employer to act upon a positive test result, the employee in question must have exhibited objective signs of impairment prior to the test. Employers hiring for positions in New York City must also keep in mind that New York City prohibits pre-employment drug testing for the presence of marijuana or tetrahydrocannabinols, which we had previously posted about here.

To the extent that an employer engages in drug testing, it should review and modify its drug testing policies as necessary to comply with the new law. Drug testing that is legal required, such as testing mandated by the Department of Transportation, or which is mandated by a federal contract, can continue.

If you have questions about your business’s employment practices, please contact us at (201) 345-5412 / (646) 503-5358 or through our online scheduling system to schedule a complimentary consultation.