On March 31, 2021, the Marijuana Regulation & Taxation Act (MRTA) legalized the recreational use of cannabis by adults in New York. The first legal sale of recreational cannabis took place at an dispensary in Manhattan on December 29, 2022.
How does legal cannabis effect the workplace? The MRTA amended the New York Labor Law to clarify that cannabis is a legal consumable product. As such, employers cannot discriminate against employees based on the use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.
Employers can prohibit employees from using cannabis during work hours and from bringing cannabis onto company property, rented space and company vehicles. Additionally, employers can take action based on an employee’s use of cannabis where (a) it’s required by law; (b) it impairs an employee’s ability to perform their job or interferes with the obligation to provide a safe and healthy workplace; or (c) it would result it the loss of a federal contract or funding.
To show impairment, an employer cannot rely on the smell of cannabis alone. Managers need to observe a “specific articulable symptom” of impairment that decreases the employee’s work performance or interferes with the obligation to provide a safe and healthy workplace. Such symptoms might include a lack of coordination, slurred speech, impaired vision, poor judgment, delayed reaction and/or information processing, abrupt shifts in mood, anxiety or stress, hallucinations.
Employers cannot drug test an employee for cannabis to show impairment because such tests don’t currently measure impairment. However, an employer can drug test an employee if federal or state law requires it. For example, drivers of commercial vehicles or for-hire carriers.
Finally, employers must be mindful of employees certified as patients in the Medical Cannabis Program. They must be treated as having a “disability” and are protected from discriminatory action based solely on their status as medical cannabis patients.
Ralph A. Somma is a New York employment lawyer who represents and advises clients on all workplace issues.
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About the Author: Ralph A. Somma
Ralph A. Somma is an experienced employment lawyer from Long Island, New York who has been precticing labor & employment law exclusively for 30 years.
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