New York State Marijuana Regulation and Taxation Act

Background:

On March 31, 2021, New York passed legislation legalizing the recreational use of marijuana for individuals over the age of 21 with the Marijuana Regulation and Taxation Act (MRTA). The MRTA legalizes the licensed cultivation and distribution, as well as the use and possession, of recreational marijuana in New York State. Though medical marijuana has been legal in New York since 2014, the Act significantly expands the lawful use of marijuana in the state.

What does this mean for businesses and other frequently asked questions:

What does the MRTA actually do?

  • Creates an expansive recreational marijuana program.
  • Establishes the cannabis control board and office of cannabis management.
    • The board is responsible for regulating medical and recreational use of marijuana and hemp extracts.
  • Makes several statutory amendments, including changes to the tax law and penal law.
  • Amends Labor Law Section 201-d.

What does the MRTA prohibit Businesses to do?

Labor Law Section 201-d prohibits an employer from refusing to hire, employ, license, or discharge an employee because of the following:

  • individual political activities outside of working hours and off the employer’s premises;
  • legal use of consumable products prior to and after the conclusion of the employee’s working hours and off the employer’s premises;
  • legal recreational activities outside work hours and off the employer’s premises; and
  • membership in a union or any exercise of rights created under Title 29, U.S.C. Chapter 7 or under Article 14 of the Civil Service Law.

What are the employee protections?

MRTA provides protections to certain individuals who legally use cannabis outside of work hours, off of the employer’s premises, and without use of the employer’s equipment or other property.

What are the employer protections?

The law expressly states that it is not a violation of Labor Law Section 201-d when the employer takes action related to the use of cannabis when:

  • The employer’s actions were required by a state or federal statute, regulation, or mandate.
  • The employee is impaired by the use of cannabis (e.g., the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties/tasks of the job position; or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law).
  • The employer’s actions would require the employer to commit any act in violation of federal law or would result in the loss of a federal contract or federal funding.

What should employers do now?

Employers should review their employee handbook, employee drug testing policies, and train managers on the implications of MRTA. Unless an employer has a legal requirement to conduct pre-employment drug tests (e.g., certain safety-sensitive position), conducting pre-employment drug tests that includes marijuana is no longer a viable applicant screening method.

Employers that suspect an employee is under the influence of marijuana at work should think carefully as to how to handle such situations. For example, due to current marijuana testing capabilities, it may be hard to determine if the employee is under the influence at work. In those situations, employers should focus on the employee’s performance issues if they exist.

EBC is monitoring the advancements of this announcement. Please reach out to your HR Advisor regarding more specific questions.