New York State Addresses a Chronic Issue: Employees Granted Protections for Off-Duty Cannabis Use

On March 31, 2021, Gov. Andrew Cuomo signed the Marihuana Regulation and Taxation Act (MRTA), legalizing the recreational use of cannabis in New York State for individuals age 21 or older. While the New York City Council enacted legislation on May 10, 2020, prohibiting many private employers from conducting pre-hire marijuana testing as a condition of employment, the MRTA expands protections for off-duty cannabis use across New York State.

Trailblazing New Protections

Effective immediately, New York State employers are prohibited from refusing to hire, terminating or otherwise taking adverse action against applicants and employees for off-duty recreational cannabis use in most circumstances. The MRTA amends New York Labor Law Section 201-d, commonly referred to as New York’s “outside activities law,” to prohibit employers from discriminating against an individual for:

·       The legal consumption of cannabis “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 and other property”

·       Engaging in the recreational activity of using cannabis “outside of work hours, off of the employer’s premises and without use of the employer’s equipment or other property”

The MRTA also provides protections for employees who use cannabis for medical reasons. Employees who are prescribed medical marijuana are now deemed to have a disability as defined under the New York State Human Rights Law and are afforded the same rights and protections available to injured workers under the Workers’ Compensation law who are prescribed medications that may prohibit or require the modification of the performance of their duties. 

Baked-in Options for Employers

Employers still are permitted to strictly prohibit on-duty cannabis use by employees. The MRTA explicitly states the new law is not intended to limit the authority of employers to enact and enforce policies addressing the use of cannabis in the workplace.

In addition, employers are permitted to take adverse action against employees for cannabis use outside the workplace under certain circumstances. The MRTA expressly allows employers to take action against an employee who “manifests specific articulable symptoms” that negatively impact the employee’s performance or interfere with an employer’s legal obligation to provide a safe and healthy workplace. Further, employers may also prohibit off-duty cannabis use (i) if so required by state or federal statute, regulation, ordinance, or other state or federal government mandate, or (ii) if the employer would otherwise be in violation of federal law or suffer the loss of a federal contract or funding. However, under current law, such legal requirements apply only to a limited number of industries.

Dazed and Confused? Practical Guidance for Employers

New York employers should consider taking the following steps to avoid running afoul of the MRTA:

·       Review drug-free workplace and other employee conduct policies to ensure such policies do not prohibit the off-duty use of cannabis. Such policies may still expressly forbid off-duty cannabis use while on company premises and prohibit any use that causes an employee to be impaired at work.

·       Train managers and human resources professionals on the requirements of the MRTA, as well as procedures for documenting and addressing on-duty cannabis use or off-duty use resulting in performance impairment.

·       Assess current background check practices to confirm that convictions for cannabis-related offenses that are now considered lawful do not factor into hiring decisions.

·       Alter pre-hire drug testing practices to ensure applicants are not screened for cannabis (New York City employers already will have done so in compliance with New York City law). Although the MRTA does not expressly prohibit testing applicants for cannabis, doing so may create risk of a future discrimination claim from a rejected applicant.

For questions or concerns regarding the implications of the MRTA, please contact a member of Kramer Levin’s Employment Law Department.