2 Years Later: What Marijuana Legalization Means for New York Employers and Employees

March 31, 2023 was the second anniversary of New York State passing the Marijuana Regulation and Taxation Act (“MRTA”), which legalized the recreational use of marijuana by adults and prohibited employers from conducting non-federally mandated drug testing employees for marijuana.  The MRTA was impactful with game-changing rippling effects, so a recap is more than needed.

Drug Testing

The significance of the MRTA arises from the amending of Section 201-D, or the New York Lawful Activities Law, of the New York Labor Law to establish that as long as cannabis is used in accordance with New York State Law, it renders it a legally consumable product.  As such, New York employers may not refuse to hire, employ, discharge, or discriminate against someone who uses cannabis lawfully while off-duty, off-premises, and while not using the employer’s equipment or other property.  This inherently renders drug testing for cannabis impossible.  However, employers may test for cannabis if an employee shows “articulable symptoms of impairment.”  The guidance later handicaps that idea by stating that if the employer tests positive for marijuana, the employer may not take adverse employment actions against that employee.  However, employers are not prohibited from using disciplinary actions against employees found to be using cannabis during work hours or while using the employer’s property.  It is paramount to note that these prohibitions do not apply to drug testing mandated through federal law, meaning, for example, that drug testing required for a federal contract is still permitted.

Permitted Employer Actions

While the aforementioned seem all-consuming, that is far from the reality.  The newly amended New York Lawful Activities Law added a brand-new subsection, Subsection 4-a, which provides that employers are free to take adverse employment actions or outright prohibit employee conduct where:

1. The employer is or was mandated through federal statute, regulation, ordinance, or other state or federal government mandate to take action against the employee.
2. Failing to take action would lead the employer to violate federal law.
3. Failure to take action would lead the employer to lose a federal contract or federal funding.
4. The employee, while working, is showing specific articulable symptoms of cannabis impairment, which interferes with the performance of their tasks or duties.
5. The employee, while working, shows specific articulable symptoms of cannabis impairment to the point that it interferes with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.

Moreover, employers may prohibit cannabis use during “work hours,” including paid and unpaid breaks and meal periods, even if the employee temporarily leaves the worksite and when the employee is on-call or “expected to be engaged in work.”

What Does “Articulable Symptoms of Impairment” Mean

Despite mentioning “specific articulable symptoms of impairment” numerous times, the amended New York Lawful Activities Law fails to provide a complete and dispositive list of symptoms of impairments.  In fact, even the smell of cannabis, on its own, is not considered evidence of an articulable symptom of impairment.  Instead, articulable symptoms are described as objectively observable indications that the employee’s performance of their essential duties is decreased or lessened.  However, employers should be aware that what they may deem to be articulable symptoms of impairment may also be a sign of an employee’s disability, which is protected under federal and state law through the New York State Human Rights Law.

If you feel your employer has discriminated against you for your use of cannabis while you are off-duty, off-premises, and while not using the employer’s equipment or other property, contact Borrelli & Associates, P.L.L.C., to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 248-5550, (516) ABOGADO, or (212) 679-5000.