Employer Protections: New York State Legalizes Adult Recreational Use Cannabis

On Wednesday March 31st, the Governor signed into law the Marijuana Regulation and Taxation Act. This bill is over 100 pages long, but we wanted to highlight a few of the changes to the law that will most directly impact an employer. While certain provisions of the law take effect immediately (the use and possession of cannabis & criminal expungements) many provisions will not be in effect until well into 2022. A few key provisions of the law can be found below:



Paragraphs b and c of subdivision 2 of section 201-d of the labor law, as added by chapter 776 of the laws of 1992, have been amended and reads accordingly.


2. Unless 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:


b. 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.


c. An individual’s legal recreational activities, including cannabis in accordance with state law, outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.


Section 201-d has been amended by the addition of new subdivision 4-a.


4-a. Notwithstanding the provisions of subdivision three or four of this section, an employer shall not be in violation of this section where the employer takes action related to the use of cannabis based on the following:



(i) the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;



(ii) the employee is impaired by the use of cannabis, meaning 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; or



(iii) the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

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