May 7, 2021
On March 31, 2021, New York Governor Andrew Cuomo signed the New York Marihuana (this is the proper spelling and not a typo!) Regulation and Taxation Act (the “Act”), which legalizes the use of recreational marijuana. The Act does not preempt federal law or regulation. The Act immediately decriminalized the following for anyone over the age of 21:
- Possessing, displaying, purchasing, obtaining, or transporting up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
- Transferring (not selling) to a person 21 years of age or older, up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis;
- Using, smoking, ingesting, or consuming cannabis or concentrated cannabis;
- Possessing, using, displaying, purchasing, manufacturing, or transporting cannabis paraphernalia or concentrated cannabis paraphernalia.
The Act also immediately prohibits employers from discriminating against employees based on the use or possession of marijuana while off duty and outside of the workplace.
It is currently unclear how this Act will impact employers’ ability to act on a positive marijuana test. While testing is not prohibited, employers cannot reject an applicant based solely on personal use of marijuana. Non-federally regulated employers are only permitted to act based on a positive test result when the result is combined with objective signs of impairment (as defined by the Act) while at work.
What Should Employers Do?
Many employers in New York state require drug testing either pre-employment, or during an employee’s tenure under certain circumstances. This need not change so long as testing for cannabis is generally avoided unless required by some law. In this case, employers should seek counsel to ensure compliance with New York’s marijuana legalization law.
Next steps for every New York State employer should include reviewing your drug use policies and testing procedures and modifying them to remove references to cannabis as appropriate. Supervisors should also be trained to determine whether employees appear impaired while on duty. If so, employers must decide if immediate testing will be done. Assuming a test if performed, someone familiar with this law should guide employers so they can properly discipline such employees without running afoul of this law.
Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
