www.fisherphillips.com Open in urlscan Pro
2606:4700:10::6816:155c  Public Scan

Form analysis
0 forms found in the DOM

Text Content

 * People
 * Services & Industries
 * Insights
 * Offices

Menu
Search

 * Add to BinderCollate pages from across our site.
 * My Binder
 * Share
    * 
    * 
    * 
    * 

 * PDF
 * Print


WHAT NEW YORK STATE EMPLOYERS NEED TO KNOW ABOUT CANNABIS LEGALIZATION

Insights

4.08.21


Recreational use of cannabis or marijuana is now legal in New York State. On
March 31, Governor Cuomo signed into law the Marihuana Regulation and Taxation
Act. The legalization of cannabis will have significant short and long-term
effects on all facets of society in the state, including policies and procedures
in the workplace. Here’s what employers need to know right now.

Lawful Cannabis Use 

Effective March 31, 2021, adults aged 21 or older can lawfully possess, use, and
transfer (without compensation) up to three ounces of cannabis and up to 24
grams of concentrated cannabis. Eligible adults are also able to cultivate up to
three mature and up to three immature cannabis plants.

Protections for Employees

The Cannabis Law prohibits, with certain exceptions, disciplinary action and
discrimination against employees for their lawful use of cannabis. Specifically,
employers may not take adverse action against an employee because of their:

 * Legal use of cannabis before or after their work hours (including paid and
   unpaid breaks and meals) off the employer’s premises and without use of the
   employer’s equipment or property; or
 * Legal use of cannabis during the employee’s legal recreational activities off
   the employer’s premises and without use of the employer’s equipment or
   property,

Employees may not be subjected to disciplinary action solely for conduct
permitted under the Cannabis Law.

Protections for Employers

While the Cannabis Law allows employees to legally use cannabis before and after
work hours, it does not provide them carte blanche for the legal consumption of
cannabis in the workplace or to report to work under the influence of marijuana.
Indeed, the law makes clear that it is not intended to limit the authority of
employers “to enact and enforce policies pertaining to cannabis in the
workplace.” Specifically, an employer does not violate the law when disciplining
an employee for their use of cannabis based on the following:

 * Compliance with state or federal law. The employer’s actions were required by
   state or federal statute, regulation, ordinance or any other state or federal
   mandate.
 * Employee impairment due to cannabis use. Where the employee manifests
   "specific articulable symptoms" while working that:

 1. 1. Decreases or lessens the employee’s performance of their duties; or
    2. Interferes with the employer’s obligation to provide a safe and healthy
       work place as required by state and federal occupational safety and
       health law.

 * Violation of federal law or loss of federal contract or federal funding.
   Where the employer’s actions would require the employer to commit any act
   that would result in the violation of federal law or loss of a federal
   contract or federal funding.

Unfortunately, the term “specific articulable symptoms” is not defined within
the Cannabis Law. For this reason, it may be difficult to determine whether an
employee is sufficiently impaired by cannabis while working to warrant action.
Nonetheless, it is evident that an employer can act against an employee unable
to perform their job duties or who poses a safety hazard due to their use of
cannabis. Further, given the nebulous relationship between state and federal law
with respect to cannabis legalization, employers are not required to take action
that would interfere with their ability to comply with federal law or receive
federal contracts or funding.

Workplace Drug Testing of Employees

The Cannabis Law does not prohibit drug testing of prospective or current
employees. The utility of pre-employment testing is, however, minimal in light
of the Cannabis Law now that employers cannot refuse to hire, discharge, or
otherwise discriminate against an individual if they test positive.

It should also be noted that New York City employers are already prohibited from
requiring prospective employees to submit to drug testing for the presence of
tetrahydrocannabinols or marijuana, except for those individuals applying to
safety sensitive positions such as police or peace officers, roles requiring the
supervision of children, medical patients or other vulnerable persons, jobs
requiring a commercial driver’s license, or any position where drug testing is
required by law or a collective bargaining agreement.

Employers who intend or expect to continue drug testing current employees should
remember that they cannot – apart for in instances where the three exceptions
delineated above apply – discharge or otherwise discriminate against an employee
for their lawful use of cannabis.

Smoking or Vaping Prohibited in Places of Employment

The smoking or vaping of cannabis is prohibited in any location where tobacco
smoking is prohibited. Additionally, the Cannabis Law prohibits smoking or
vaping cannabis, unless otherwise authorized, in locations where smoking or
vaping cannabis is prohibited pursuant to Article 13-E of the Public Health Law.
Section 1399-O of Article 13-E specifically forbids smoking and vaping in
certain indoor areas, including places of employment and school grounds or
buses.

Medical Use of Cannabis

Legalized in New York since 2014, laws concerning medical cannabis and New
York’s Medical Marijuana Program are now encompassed in Article 3 of the
Cannabis Law. Patients certified to use medical cannabis (certified patients)
are deemed to have a disability under the Executive Law and Civil Rights Law.

Like recreational cannabis users, certified patients cannot be subjected to
disciplinary action solely for their certified medical use of cannabis. Notably,
under the Cannabis Law, certified patients are entitled to the “same rights,
procedures, and protections available and applicable to injured workers under
workers’ compensation law or other rules, when such injured workers are
prescribed medications that prohibit, restrict, or require modification of the
performance of their duties.” Employers are not, however, barred from enforcing
policies prohibiting an employee from performing their employment duties while
impaired by a controlled substance. Nor does the law require any entity to do
any act that would violate federal law or result in the loss of a federal
contract or federal funding.

Given the tension here between an employer’s right to bar employees from
performing their employment duties while impaired by a controlled substance and
the legal requirements concerning accommodation, you should take particular care
when drafting policies and procedures concerning this area.

Next Steps for New York Employers

Recreational and medical consumption of cannabis is legal, and your company
should not wait to develop, if it has not already, rules and policies concerning
cannabis in the workplace. As you craft your policies, keep in mind issues such
as the employee transfer (without compensation) of cannabis in the workplace;
use of cannabis edibles; and cannabis use at workplace functions. You should
also implement training on the Cannabis Law specific to staff and managers.

Regulations from the New York State Cannabis Control Board will be forthcoming
in the coming months and years as provisions of the Cannabis Law are
implemented. Already, the state has developed a website for the newly created
Office of Cannabis Management. You should periodically review the website which
will have updates and guidance on the law. For information about the State’s
expanded Medical Marijuana Program, refer to the New York State Department of
Health’s website.

We will continue to monitor developments impacting New York employers, so make
sure you are subscribed to Fisher Phillips’ Alert System to get the most
up-to-date information. If you have questions about the Cannabis Law and whether
your policies comply with workplace and other applicable laws, contact your
Fisher Phillips attorney or any attorney in our New York City office


RELATED PEOPLE

 1. Justin ReiterAssociate
    
    212.899.9985
    
    Email
 2. Amanda M. BlairAssociate
    
    212.899.9989
    
    Email


SERVICE FOCUS

 * Employment Discrimination and Harassment
 * Counseling and Advice


RELATED OFFICES

 * New York


WE ALSO RECOMMEND

Insights

02/08/22

What Every North Carolina Employer Needs to Know About Restrictive Workplace
Covenants (Part 1)

Learn More 

Insights

01/26/22

Top 6 Things NY Employers Need to Know About Proposed Regulations for HERO Act
Workplace Safety Committees

Learn More 

Insights

01/18/22

New York State’s Final Paid Sick Leave Regulations Address 5 Lingering Questions
for Employers

Learn More 

Insights

02/07/22

California on Verge of Bringing Back COVID-19 Supplemental Paid Sick Leave –
What Employers Need to Know

Learn More 

Subscribe to Our Latest Insights 

©2022 Fisher & Phillips LLP. All Rights Reserved. Attorney Advertising.

 * Privacy
 * Legal Notices
 * Client Payment Portal
 * My Binder

 * 
 * 
 * 
 * 

We collect information about you through cookies. Click here for our Privacy
Policy.