The New York Marijuana Regulation and Taxation Act (the “Cannabis Law”) has legalized the adult use and possession of recreational marijuana products.
The Cannabis Law also prohibits employers from taking disciplinary action against employees for their lawful use or possession of cannabis. It does not, however, restrict an employer’s ability to enact and enforce policies pertaining to cannabis in the workplace. Employers may still prohibit the use and possession of cannabis at work and may take disciplinary action against an employee impaired by cannabis during working hours. In order to take such disciplinary action, an employer will have to be able to articulate specific symptoms that impaired the employee’s performance.
Lawful Off-Duty Conduct Provision
The Cannabis Law amends and expands Section 201-d of the New York Labor Law, regarding lawful off duty conduct. Subject to certain exceptions discussed below, it is unlawful for any employer to refuse to hire, discharge, or otherwise discriminate against any individual because of that individual’s legal use or possession of cannabis in accordance with state law, to the extent that such use occurs 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.
Exceptions to Lawful Off-Duty Conduct Provision Related to Cannabis
An employer will not violate the Labor Law where:
(i) the employer’s actions are required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
(ii) the employee is impaired by the use of cannabis, meaning the employee manifests specific 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 work-place, free from recognized hazards, as required by state and federal occupational safety and health law; or
(iii) the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.
Don’t Forget the Duty to Accommodate
While marijuana can now be used recreationally, some employees may be using cannabis pursuant to a medical prescription. In the case where an employee is prescribed medical cannabis, employers must keep in mind their duty to reasonably accommodate where such medication may impact, or require the modification, of the performance of the employee’s duties.
Employers should review their drug use and testing policies to ensure compliance with the Cannabis law. Managers should also be advised how to proceed when they suspect an employee may be under the influence and impaired by cannabis in the workplace and/or during working hours.