BPHR’s Director Lisa Salcido, SPHR, SHRM-SCP provides answers to your pressing HR questions.
Question: What should New York employers consider now that the state has legalized marijuana?
Answer: Not to be outdone by New Jersey, New York has passed an expansive law that legalizes adult-use recreational marijuana. On March 31, 2021, Governor Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA) which prohibits employment discrimination based on off-duty lawful use of cannabis products.
Employers are still permitted to enforce policies that prohibit marijuana use or possession during work hours, at the employer’s workplace, and driving or using the employer’s equipment while impaired by cannabis.
MRTA does not prohibit drug testing; however, employers cannot rescind a job offer or take an adverse action against an employee solely because of a positive cannabis test result. As a reminder, NYC employers have not been permitted to test most job candidates for marijuana under a separate 2020 law. MRTA allows employers to take a cannabis-related adverse action based on specific exceptions:
- the adverse actions is required by state or federal statute, regulation, ordinance, or other state or federal government mandate;
- hiring or employing a recreational marijuana user would be in violation of federal law or would result in the loss of a federal contract or federal funding; or
- the employee’s cannabis impairment affects their performance or interferes with an employer’s obligation to provide a safe and healthy workplace.
MRTA describes impairment as “specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.” The burden of proving cannabis impairment, regardless of test results, will be challenging for employers. A positive cannabis test without symptoms of impairment, may not be enough to adversely impact a worker’s employment or reject an applicant, unless required by a federal contract or mandate.
New York’s marijuana legalization and employment protections are effective immediately. The state’s Cannabis Control Board and Office of Cannabis Management is expected to provide additional guidance as the implementation of the law progresses. New York employers should review their federal contracts, policies, drug testing practices, and train their Supervisors for signs of impairment during work hours.
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DISCLAIMER: The material presented on this page is for informational purposes only and does not constitute legal advice or legal opinion.