Effective March 31, 2021 the MRTA legalized marijuana use and possession for adults 21 years of age and older in the state of New York. As such, New York employers are prohibited from refusing to hire, denying employment, discharging or otherwise discriminating against an individual who uses cannabis lawfully while off-duty, off-premises and not while in use of the employer's equipment/property.

Key points noted in the guidance include:

• Testing for marijuana is only permissible in extremely limited circumstances (i.e. legally required for the position in question).
• Drug test results cannot serve as an employer's concluding basis that an individual was impaired by marijuana.
• The smell of marijuana itself does not qualify as an articulable symptom of impairment.
• Only "employees" are protected from disciplinary action, meaning the MRTA does not apply to independent contractors, volunteers, and students.

Situations in which employers may take action as it relates to the use of marijuana include when:

• Action is required by state or federal statute, regulation, ordinance or mandate.
• Failure to take action would render the employer in violation of federal law.
• Loss of a federal contract or funding is at risk.
• In the course of active employment a worker displays specific articulable symptoms of cannabis impairment that negatively impact the employee's ability to perform tasks and/or interfere with the employer's obligation to maintain a safe workplace as required by state/federal safety laws.

Additionally, the guidance confirms that employers are still permitted to prohibit cannabis use during work hours as well as possession of cannabis on company property.

New York-based employers are encouraged to review the guidance and assess internal workplace policies and hiring protocols to bolster compliance with New York Labor Law 201-D.

Posted: November 1, 2021