On March 31, Governor Andrew Cuomo took a breather from his “troubles” and signed the Marihuana Regulation and Taxation Act of 2021. New York now joins its neighbors Massachusetts, Vermont, and New Jersey in allowing recreational cannabis for use by adults 21 years old and older. Citing “social justice” as a driving force, the governor’s office projects the state could see tax revenues of up to $350 million annually from taxing adult cannabis use and the creation of 30,000 to 60,000 new jobs across the state in the legal cannabis industry. Many parts of the law, including employment-related sections, are effective immediately. Read on to learn how the new law affects public- and private-sector employers.
Toking as a Protected Activity
Under the new law, discrimination based on lawful cannabis use outside of work hours and off company premises is generally prohibited. The law amends New York Labor Law 201-d, which pertains to an employee’s “legal use of consumable products,” a category that protects the lawful use of alcohol and tobacco products.
The relevant section of the new law also applies to job applicants, suggesting pre-employment drug testing or inquiry could be viewed as discriminatory, especially if it leads to denial of the job application based on a positive result for cannabis or the applicant’s admission of use. Given the new law’s broad expungement of minor cannabis-related offenses, background checks that reveal now-decriminalized cannabis use are also problematic.
Because cannabis is still illegal under federal law, including the Drug Free Workplace Act (DFWA) and U.S. Department of Transportation (DOT) regulations (think drivers with commercial driver’s licenses, or CDLs), employers aren’t required to “commit any act that would cause [them] to be in violation of federal law, or that would result in the loss of a federal contract or federal funding.”
In other words, if federal law requires you to take some action against an employee based on her use of cannabis (which is now legal under New York law), your action isn’t discriminatory or illegal under the new law. Federal contracts and grants frequently require employers to comply with the DFWA. Conversely, if you aren’t subject to federal constraints, there’s no reason to test or discipline employees for lawful cannabis use.
The new law is in addition to the existing medical marijuana law. Subject to the federal exemptions and workplace safety concerns, most employers should be treating an employee who is a “certified” medical marijuana user in the same way as an employee who uses a lawfully prescribed drug for a medical condition.
While no employer has to tolerate an impaired employee, regardless of whether he is a certified user, you must reasonably accommodate individuals with a qualifying disability. The new law doesn’t change their protected status.
Work Rules and Discipline
The new law states, “Nothing in this act is intended to limit the authority of any district, government agency or office or employers to enact and enforce policies pertaining to cannabis in the workplace.” Although it seems to leave intact your authority to enact and enforce policies regarding cannabis in the workplace (including prohibiting driving under the influence, engaging in conduct that endangers others, and smoking cannabis in any location where using tobacco is prohibited), without regulations, it’s unclear exactly what work rules or discipline will be upheld.
Questions on work rules abound:
- Can an employer treat cannabis like alcohol, another lawful product, and simply ban its possession and use on the worksite?
- Can you permit smoke breaks for tobacco lovers but deny cannabis smokers the same privilege?
- Also, how does the employee (or employer) safeguard cannabis brought onto the worksite so nonadults can’t access it? (For some employers with a young workforce, the issue isn’t small or hypothetical.)
What about an employee who is impaired by cannabis? If the individual “manifests specific articulable symptoms” of cannabis intoxication while working, you may take adverse action. Of course, you aren’t required to tolerate the creation of unsafe workplaces as a result of now-lawful cannabis use, much like you aren’t forced to allow the unsafe use of other legal consumable substances such as alcohol or prescription medication.
Unfortunately, because drug testing for THC isn’t wholly accurate, a medical opinion may be needed to validate an impairment concern.
The Marihuana Regulation and Taxation Act will create new challenges for employers. For those not concerned about the DFWA, the DOT’s rules for CDLs, or other “federal” issues, now is the time to take the following steps:
- Change your drug testing protocols to remove preemployment testing for THC;
- Fine-tune your background checks;
- Revise the company’s recruitment and substance abuse policies; and
- Rethink your on-site “smoking” policies.
Finally, contact employment counsel about how the new law will affect your company.