By Celena R. Mayo with contributors Jeremy M. Buchalski and Lindsay Kalick
In March 2021, the New York State Legislature passed, and then-Governor Andrew Cuomo signed, the Marijuana Regulation and Taxation Act (MRTA or the Act). In addition to legalizing the recreational use of marijuana in New York, the Act amends both the New York medical marijuana law and the New York Labor Law. These amendments significantly impact an employer’s rights and obligations vis-à-vis their employees’ use of marijuana.
The MRTA
Broadly, the MRTA legalizes adult-use, i.e., recreational use, cannabis in New York State and establishes an Office of Cannabis Management (OCM) governed by the Cannabis Control Board. As it relates to employers, the Act makes changes to the Labor Law and generally prohibits adverse actions against employees who engage in off-site, recreational cannabis use. As affirmed by the OCM, “the law is not intended to limit the authority of an employer to establish policies and procedures prohibiting employees from being impaired by cannabis in the workplace, and employers are not required to engage in any conduct that would otherwise violate federal law or cause the employer to lose federal funding.” However, in practice, the law (1) effectively requires employers to engage in a wholesale reassessment of their current policies around use and testing, (2) codifies certain judicial holdings around medical use and (3) folds New York’s medical use law, the Compassionate Care Act, into the auspices of the OCM.
Medical Use
Employees who are in the Medical Cannabis Program are considered automatically to be disabled and, as such, are protected from discrimination on that basis. This also means that employers are required to engage in the interactive process/cooperative dialogue when assessing the need for an accommodation for these employees. Note, to the extent an employer does not affirmatively know that an employee participates in a medical marijuana program, the suspicion that an employee is impaired at work (see below) may constitute a “reason to know” that an employee is disabled and may therefore trigger an employer’s obligation to engage in the interactive process/cooperative dialogue prior to taking any adverse employment action.
Prohibited Conduct
The MRTA amends New York Labor Law § 201-D and makes it generally unlawful for an employer to take the following actions as a result of an individual’s use of cannabis pursuant to the MRTA, outside of work hours, off the employer’s premises, and without use of the employer’s equipment or other property:
Exceptions
The MRTA amends New York Labor Law § 201-D by adding a subsection 4-a, which allows employers to take adverse actions against employee/applicants where:
Articulable Symptom of Impairment
What They Are
As the guidance issued by the OCM makes clear, “there is no dispositive and complete list of symptoms of impairment.” Articulable symptoms of impairment are “objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened.”
Articulable symptoms also may be an indication that an employee has a disability and may trigger an employer’s obligations to engage the employee in the interactive process/cooperative dialogue (see above regarding Medical Use).
What They Are Not
Use of cannabis is not unlawful and, therefore, an indication that an employee has used cannabis (such as smelling of cannabis, or testing positive for cannabis), standing alone, cannot be cited as an “articulable symptom of impairment.” OCM states that “only objectively observable indications that an employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited.”
Remote Work and Off-Site Use
A few notes regarding remote and off-site workers:
“Work Hours”
Employers may prohibit cannabis use during “work hours.” The OCM has adopted the Labor Law’s and the Fair Labor Standards Act’s (FLSA’s) definition of work, i.e., all hours an employee is permitted or “suffered to work,” even if the employee leaves the worksite. These include:
Note: Cannabis use also can be prohibited during on-call hours, but this prohibition should be exercised with caution as it relates to hourly, non-exempt employees and therefore may create a duty to pay wages under the New York Labor Law, the Minimum Wage Orders, and the FLSA’s “waiting to be engaged” exception to paying on-call hourly employees.
Workplace Policies
Create policies that prohibit employees from using cannabis on the work site and/or performing employment duties while impaired by cannabis.
Applicability
Drug Testing
Drug testing is not allowed unless it is permitted under New York Labor Law § 201-D (4)(a).
Federal Government Contractors/Interaction with the Drug Free Workplace Act
Neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorize drug testing of employees.
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About The Contributors
Jeremy Buchalski, a partner at Wilson Elser, focuses his legal practice on general liability, including the defense of cases involving trucking accidents and premises liability and lawsuits stemming from harm allegedly caused by lead-based paints. In addition, he has extensive experience in the defense of employers and insurance carriers in workers’ compensation cases. Jeremy’s clients include trucking companies and their insurers, landlords and their insurers in lead paint actions, residential buildings in premises liability actions, and employers and insurers in workers’ compensation cases.
Wilson Elder Partner, Lindsay Kalick defends negligence-based lawsuits in New York state and federal courts. She has extensive experience defending complex and high-exposure claims in the transportation, construction and premises liability/security industries. Lindsay represents property owners, commercial tenants, national trucking and long-hauling companies, and insurance companies. She also defends subrogation matters, SUM/UM claims and no-fault claims venued in Arbitration Forums, Inc.; the American Arbitration Association; and New York civil and state courts. To address safety issues and reduce the potential for litigation, Lindsay provides consultation to clients concerning risk management strategies.
Celena Mayo has focused exclusively in the employment and labor area throughout her legal career. Prior to joining Wilson Elser in 2004, she served as an Assistant Corporation Counsel in the New York City Law Department, Labor & Employment Division. Celena, a Cuban-American bilingual in Spanish and English, also is a member of the firm’s Latin America practice and e-Discovery practice. She can be reached by e-mail at [email protected].
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