Cannabis and Employment in New York

By now, the legalization of recreational marijuana/cannabis in New York has become front page news. What has not become front page news is the ramifications of this decision on employment.  Common questions by many include: “Can my job drug test for marijuana?,” “Can I be denied employment simply because of my recreational use of marijuana:?” “Can I lose my job because of recreational marijuana use?”  The rest of this post will work towards answering those questions and pointing you in the right direction to figure out answers to other similar questions.

To answer any of those questions, the first place to start is the law.  New York labor Law Section 201-D titled “Discrimination against the engagement in certain activities” was most recently updated in April 2021 to reflect cannabis/marijuana’s newly held legal status in New York.  In the past, 201-D primarily to protected employees from negative employment consequences surrounding activities people participate in outside of work hours.  201-D defines “work hours” as “all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. . . .”  The two main types of activities outlined in 201-D are “political activities” as well as “recreational activities” that are defined as “any lawful, leisure-time activity, for which the employee received no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material[.]”

201-D goes on to very specifically state marijuana/cannabis’s place within this law.  201-D explains that, “[u]nless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: . . . “an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off the employer’s premises and without use of the employer’s equipment or other property; an individual’s legal recreational activities, including cannabis in accordance with state law, outside of work hours, off the employer’s premises and without use of the employer’s equipment or other property[.]”

All that legal jargon means, is that for most employees in New York, marijuana/cannabis is likened to any other legal recreational activity one might enjoy, such as riding a bike or surfing.  While an employer may dislike people who ride bikes or surf for whatever reason, those are not things anyone would consider as reasons to be discriminated against.  Now, because of 201-D, recreational and off the clock consumption of marijuana/cannabis holds the same legal status as any other legal, recreational activity, with the caveat of course that one cannot be on company time, property, or using company equipment.  There are some jobs however that are not covered under this law do to exception to the rule, including but not limited to: some health care workers (as it may be a conflict of interest), public officers, and employees whose consumption of cannabis/marijuana would violate provisions of a collective bargaining agreement, code of ethics, or negatively impact the ability to perform their duties.

If you have questions about your rights as an employee or your think that your employer has violated your rights regarding the recreational use of marijuana/cannabis, or in any other way, we can help.  To discuss your situation or to speak to an attorney familiar with workplace rights, 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) 871-4267, (516) ABOGADO, or (212) 679-5000.