On March 31, 2021, Governor Andrew Cuomo signed the New York Marijuana Regulation and Taxation Act (the Act) legalizing the recreational use of marijuana products by adults. Effective immediately, the Act prohibits employers from discriminating against workers based on the legal¹ use or possession of marijuana products while off duty and outside the workplace, with few exceptions. The law also provides a private right of action for employees claiming to be harmed by such alleged discrimination.

Employer Drug and Alcohol Rules Permitted Under the Act. The Act permits employers to continue certain fundamental drug-free workplace rules:

• Workplace Use/Possession Can Be Prohibited. Employers may still prohibit marijuana use or possession during work hours,² on employer premises and while using an employer's equipment or other property.

• Limited Federal Safe Harbors. Employers may continue to take adverse action against employees who engage in off-duty marijuana use if: i) so required by state/federal law, regulation, ordinance or other state/federal governmental mandate; or ii) complying with the Act would require an employer to violate federal law or would result in the loss of a federal contract or federal funding. This safe harbor is limited and does not allow employers to discriminate against marijuana users simply because cannabis is illegal under federal law. Rather, specific obligations, if any, such as those under federal government contracts or grants must be considered.

• Workplace Impairment Can Be Prohibited. An employer may prohibit and take adverse action against marijuana users under the Act based on an employee's workplace "impairment." The following are indications of such impairment:

... 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.

• Impaired Driving Not Protected. The Act does not excuse an individual from driving while impaired by marijuana under New York marijuana DUI/impairment laws.

Prohibited Employer Conduct Under the Act. An employer's ability to act based on a positive marijuana drug test is largely "up in smoke" under the Act. While testing is not prohibited, employers cannot reject an applicant or take adverse action against an employee solely based on away-from-work marijuana use or testing positive for marijuana on a work-related drug test. Although the Act does not preempt federal law or regulation prohibiting the use of marijuana and mandating testing (e.g., under DOT rules), it prohibits non-regulated employers from acting on the basis of a positive test result unless the tested individual tests positive, and prior to the test exhibited objective signs of impairment as defined in the Act.

Managing for Compliance Under the Act. Because the Act's worker protections are effective immediately, New York employers³ must manage for compliance now. Legally mandated marijuana testing, e.g., DOT marijuana testing, can and must continue. A review of an employer's federal contracts and funding requirements, if any, relating to marijuana testing likewise is in order. Other marijuana testing requires more attention, and thus, employers should review the Act and their substance abuse and testing policies and make adjustments as may be needed.⁴ Reminders of existing prohibitions on marijuana use, possession and impairment during working hours, on employer premises and while using an employer's equipment or other property, are both permitted and prudent under the Act.

Posted: April 6, 2021

¹ The Act generally permits persons 21 years of age or older to use marijuana, and to possess, display, purchase, obtain, or transfer without compensation up to three ounces of marijuana.

² "Work hours" means all time, including paid and unpaid breaks and meal periods an employee is suffered or permitted or expected to be engaged in work, and all time an employee is actually engaged in work.

³ NYC employers are likely familiar with the pre-employment testing law prohibitions/exceptions in effect for almost a year.

⁴ Employers will also want to review existing background-check programs and protocols as the Act provides for expungement of certain marijuana convictions.