One of the major pieces of legislation to come out of this year’s Budget is the Marijuana Regulation & Taxation Act (the “Act”), which legalizes the use of recreational marijuana for individuals ages 21 and older.
Notably for employers, the Act amends Section 201-d of the New York State Labor Law, which generally prohibits employers from taking adverse employment action against employees based on lawful off-duty activities. The Act make it unlawful for an employer to refuse to hire an individual or otherwise discriminate against an employee as a result of that person’s lawful use of recreational marijuana before or after the employee’s work hours, off the employer’s premises and without the use of the employer’s equipment. In other words, an employer in New York State may not refuse to hire an applicant, or discipline or terminate an employee, because that individual lawfully consumed marijuana outside of the workplace during non-work hours without use of the employer’s equipment and the consumption of marijuana did not impact his or her ability to perform necessary job duties.
However, the Act ensures that employers are not required to tolerate the use of recreational marijuana under certain circumstances. The legislation makes clear that an employer would not violate Section 201-d of the New York State Labor Law by taking adverse employment action based on an individual’s use of recreational 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; or
- the employee is impaired by the use of marijuana, meaning the employee exhibits “specific articulable symptoms” while working that decrease the employee’s performance of his or her job duties, “or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace”; or
- the employer’s actions would require it to commit an action that would cause it to be in violation of federal law or would result in the loss of a federal contract or federal funding.
The Act further states that it is not intended to limit the ability of an employer to create and enforce policies pertaining to marijuana use in the workplace and ensures that employers can prohibit smoking marijuana where smoking tobacco is prohibited.
The Act took effect on March 31, however, cannabis sales will not begin until the Cannabis Control Board is formed and state officials draft regulations that will control the market (including how the Office of Cannabis Management would award licenses and assess taxes). Based on this, state lawmakers are estimating it could take up to two years for cannabis sales to begin. Thus, any use of cannabis outside the workplace and on the job would continue to be unlawful.
Although employers have some time before having to squarely address the use of cannabis by their employees for recreational purposes, they are advised to consider how this will impact their workplace. For home care providers that currently test new hires for marijuana use, such providers will be precluded from taking adverse employment action against new hires based on such recreational marijuana use. In addition, providers should consider how they will handle situations where patients are smoking marijuana in the home, in the presence of a caregiver who may object to the smell of marijuana. Employers will likely handle such situations in the same manner that they current handle cases where the patient smokes cigarettes. Lastly, from a liability standpoint, providers will have to consider how they will ensure that caregivers are not impaired from marijuana that might have been consumed before a shift. Any negligence on the employee’s part, as a result of being impaired by marijuana, could be imputed to the employer. Further, any workplace injuries resulting from an impaired employee’s negligence could result in a workers’ compensation claim.
If you have any questions about the Act and how it will affect your workplace, please reach out to us.