New York - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

No Broad Laws
Legalizing Marijuana*:

*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.

Employer Concerns – Significant to Review

  • New York state employers are prohibited from testing for marijuana of prospective or existing employees except in very limited circumstances (i.e., testing required by law, possession, visible impairment). Employers cannot test for marijuana simply because it is allowed and not prohibited.
  • 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.). This list was expanded and clarified by listing types of positions that fit the exception which became effective July 24, 2020.
  • 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 use (depending upon the particular circumstances) by 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.
  • The New York Marijuana Regulation & Taxation Act (MRTA) legalized recreational adult use of marijuana. The New York Labor Law 201-D further clarifies requirements as they relate to recreational use of marijuana and employment issues.
    • Employers cannot prohibit employees from use of marijuana while on leave or outside of work hours.
    • Unless there are specific articulable symptoms of impairment that impede performance, or the position requires federal clearance, there are employment protections against being fired for a positive marijuana test result for consumption that happened before or after work hours as long as it happened off premises and did not involve employer equipment or property. This includes remotely working in a private residence.
    • “Articulatable symptoms of impairment” are clarified in the law as, (NYLL Section 201-D 4-a (ii)), “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.”
    • Off duty conduct (use) has been clarified as, (NY Section 201-D 2. (b)), “… an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of employer’s equipment or other property,” is legal. There are a limited number of exceptions.

Testing

  • Although New York does not have drug testing per se laws, there are other laws which can seriously impact employer drug testing protocols.
  • Drug testing for marijuana by New York state employers is prohibited except in very limited circumstances (i.e., testing required by law, possession, visible signs of impairment). Employers cannot test for marijuana simply because it is allowed and not prohibited.
  • New York City – Pre-employment testing is prohibited for marijuana or derivatives except as otherwise provided by law with exceptions for specific positions (i.e., police officers, supervisors of children, etc.). This list was expanded and clarified by listing types of positions that fit the exception which became effective July 24, 2020.

Hiring/Termination

  • See Significant above.

Discipline

  • 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.

Use/Possession

  • New York’s Marijuana Regulation & Taxation Act (MRTA) amends language of the New York Labor Law § 201 which addresses off-duty use of consumable products, and specifically includes the use of cannabis in the employment context.
  • As a result of the New York Marijuana Regulation & Taxation Act (3/2021), legalization of recreational adult use, unless prohibited by local laws, smoking (formerly prohibited), is legally permitted wherever tobacco can be smoked under New York’s Clean Indoor Air Act.
  • Smoking is prohibited. Medical marijuana is legally available as oils, ointments, capsules, powders, vaporizers and some limited edibles. Dried flower and an expanded permissibility of edibles may result from MRTA (3/2021).
  • 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.
  • As per 3/2021 and the legalization of recreational adult use of marijuana, there is an automatic expungement or resentencing for anyone who was convicted of a marijuana crime that would now be legal.
  • Apply the Checklist of Impacting Issues to Research 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
  • N.Y. Marijuana Regulation & Taxation Act – Recreational marijuana
  • Adult Use Cannabis and the Workplace: New York Labor Law 201-D – Recreational marijuana
  • N.Y. New York Labor Law § 201-D – Amended NY Law Section 201-D
  • N.Y. Labor Law 18-7-593(3) – Unemployment related
  • N.Y. Workers’ Compensation Law 2-10 & 21 – Workers’ compensation related
  • N.Y. Public Health Law § 3369 – Workers’ compensation related
  • N.Y. State Human Rights Law (NYSHRL) – Disability related
  • New York City Human Rights Law (NYCHRL) – Disability related
  • Con Edison vs. Kathleen Gordon – NY Supreme Court Decision, Disability related
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).

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