New York State is one of many states in the country now where recreational marijuana use is legal. This presents additional requirements and guidelines that employers in the state need to be aware of regarding the New York MRTA. Here is what employers need to know regarding the legalization of marijuana in New York when it comes to their business.
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.
New York State Cannabis Law
There are several things that New York employers need to understand regarding the Marijuana Regulation and Taxation Act.
What is the New York MRTA?
The board is responsible for regulating the medical and recreational use of marijuana and hemp extracts. The MRTA makes several statutory amendments, including changes to the tax law and penal law, and amends Labor Law Section 201-d.
Employer Requirements Under New York State MRTA
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.
MRTA Protections for Employees: Can Employers Test for Cannabis in New York State?
The MRTA provides protections to certain individuals who legally use cannabis outside of work hours, off of the employer’s premises, and without the use of the employer’s equipment or other property.
Generally speaking, while employers can test employees for cannabis in New York State, the employer may only take action against an employee in relation to the use of marijuana if:
- 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's Next for Employers?
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 include 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.