No Broad Laws
*In these states, marijuana is either totally illegal, or there may be laws decriminalizing possession, or use of marijuana, or, the state may have a CBD law legalizing THC at a level constituting marijuana-derived CBD.
Employers have so many questions! Learn More About Workplace Considerations for Marijuana Use.
What are the impacting issues of marijuana use? Review Our Checklist of Impacting Issues to Research.
Employer Concerns – Significant to Review
- New York City – Effective May 10, 2020 prohibition of pre-employment drug testing for marijuana or derivatives except as otherwise provided by law with exceptions for specific positions (i.e., police officers, supervisors of children, etc.).
- Prohibits employer from refusing to hire, terminating, or otherwise penalizing an employee solely based on their status as a certified medical marijuana patient.
- Employers may prohibit employees from working while impaired by marijuana.
- Employers with four or more employees must also provide reasonable accommodations to medical marijuana users. Unless such action that would cause a violation of federal law or the loss of a federal contract or funding.
- IMPORTANT: Pursuant to the Compassionate Care Act (CCA), “Certified Patients” authorized to use medical marijuana are deemed to have a disability under the New York State Human Rights Law (NYSHRL). In theory it appears that employers must reasonably accommodate (depending upon the particular circumstances) an employee who is a “Certified Patient” as a result of his/her deemed disability. The Compassionate Care Act specifically states that “Certified Patients” shall not be subject to, “…disciplinary action by a business . . . solely for the certified medical use or manufacture of…” marijuana. Therefore, an employer could be subject to a discrimination claim if he or she fires or disciplines an employee who is legally consuming or manufacturing marijuana.
- Although New York does not have drug testing per se laws, there are other laws which can seriously impact employer drug testing protocols.
- New York City has a prohibition of pre-employment drug testing for marijuana or derivatives except as otherwise provided by law with exceptions for specific positions (i.e., police officers, supervisors of children, etc.).
- See Significant above.
- See Significant above.
- Due to a 2020 court ruling, a company should seek knowledgeable, state-specific legal counsel prior and plan to engage in an interactive dialogue and consider any reasonable accommodations prior to terminating or taking an adverse action against an employee who is a medical marijuana patient.
- Smoking is prohibited.
- Edibles are prohibited.
- Cannot vape in any public place or commercial space where public health law prohibits smoking.
- Illegal in all motor vehicles.
Other Impacting Laws (e.g., drug testing, workers’ compensation, unemployment)
- Workers’ compensation claim denial – Although an injury is not compensable when intoxication on duty is the sole or primary cause of the injury, note that unless there is substantial evidence to the contrary, it will be assumed that an injury is not caused solely or primarily by the effects of drugs.
- The state’s Workers’ Compensation Board determined that medical marijuana is reimbursable if certain criteria are met.
- Apply the Checklist of Impacting Issues for Employee Use of Marijuana provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.
Sources (e.g., Bill Number, Authority)
- New York Public Health Law 33-5A et al. – Medical marijuana
- Y. Labor Law 18-7-593(3) – Unemployment related
- Y. Workers’ Compensation Law 2-10 & 21 – Workers’ compensation related
- Y. Public Health Law § 3369 – Workers’ compensation related
- Y. State Human Rights Law (NYSHRL) – Disability related
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DISCLAIMER: This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.
CAUTION: Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).