Legalization of Marijuana in New York

As we discussed last year, the Marijuana Regulation and Taxation Act (“MRTA”) was signed into law on March 31, 2021, to legalize recreational cannabis use in New York State.  

Employers are permitted to take adverse action where: 

• The employee uses cannabis during work hours, on the employer’s premises, or with the use of the employer’s equipment or other property. 

• Such adverse action is required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate. 

• Failure to take such action would result in the employer violating federal law or losing a federal contract or federal funding. 

• The employee is impaired by the use of marijuana, as defined by the statute. 

• Only legal use of cannabis is protected. Accordingly, employers may take adverse action for cannabis use by an employee or applicant under 21 years of age. 

• Section 201-d does not apply to bona fide independent contractors, volunteers, and other individuals who are not current or prospective employees under the New York Labor Law. 

Impact on Drug Testing: 

• Perhaps the most surprising part of the guidance is NYSDOL’s position that employers cannot test for cannabis unless one of the Section 201-d cannabis exceptions applies. 

• This means that, according to NYSDOL, an employer cannot require an employee or applicant to undergo a test for cannabis unless: (1) it is required to do so by federal or state law; (2) failure to do so would result in a violation of federal law or result in the loss of a federal contractor of federal funding; or (3) the employee manifests specific articulable symptoms as outlined in the statue. 

• According to NYSDOL, the fact that an employer may be expressly permitted to test under federal law, such as the Drug-Free Workplace Act of 1988, has no bearing on the analysis.