Attention New York State Employers: Here’s What You Need to Know About New York’s Legalization of Recreational Cannabis Use and the Workplace
March 31st, 2021, New York became the 16th state to legalize marijuana for adult recreational use, raising many questions for New York employers. Under the new law, an employer in New York State cannot refuse to hire, employ, or license or discharge from employment or otherwise discriminate against an individual for their lawful off-duty and off-premises use of cannabis.
FAQs regarding New York State’s Legalization of Recreational Cannabis Use
Q. Can I test employees or prospective employees for cannabis?
A. While the law does not prohibit drug testing, an employer can only take adverse action following a positive drug test if an employee is impaired while working. Impairment must be based on “specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards.”
We anticipate additional guidance to be issued around the definition of impairment. Additionally, employers in New York City have been prohibited from using pre-employment cannabis testing since May 2020 CLICK HERE to read HDRB&B’s blog post on “Pre-Employment Testing for Marijuana and THC.”
Q. Does this mean my employees can bring cannabis to the workplace?
A. No. Employers are still permitted to maintain drug-free workplace rules, including prohibiting the use or possession of cannabis products during work hours on employer premises and while using employer equipment or property. An employer may prohibit impairment during working hours.
Q. My company receives federal funding or contracts. Do these new restrictions apply to my business?
A. The fact that cannabis remains illegal under federal law, does not, in and of itself, exempt an employer from the law’s requirements. We recommend consulting your specific federal contracts or grants for any applicable information.
Limited circumstances allow an employer to take adverse action against an employee, notwithstanding the new law. Specifically, adverse action may be taken if required by state/federal law, regulation, ordinance or other state/federal governmental mandate; or if complying with the new law would require an employer to violate federal law or if compliance would result in the loss of a federal contract or federal funding.
QUESTIONS? If you have questions or concerns regarding FFCRA, Covid-related sick leave, cannabis legalization in New Jersey, or any other employment law related questions, please contact Heather Adelman or Maralee Sanders.