New York is the latest state to legalize recreation marijuana. On March 31, 2021, Gov. Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA) into law, ending New York’s several year delay in agreeing on a marijuana legalization law.
While MRTA has many layers that will have a widespread effect on many New Yorkers, it will also undoubtedly have an effect on employers.
Employers are advised to review the employee handbook, employee drug testing policies, and to 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 is likely 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. By way of example, due to current marijuana testing capabilities, it may be hard to determine if the employee is under the influence at work. In those instances, employers are well advised to focus on the employee’s performance issues if they exist.
Finally, employers should be careful to delineate between recreational marijuana use and medical marijuana use and to respond to such scenarios accordingly.
New York Labor Law § 201-d, also known as the Lawful Activities Act, was enacted in the early 90s with the goal of prohibiting employment discrimination against individuals engaging in legal activities during non-work hours. A driving force behind § 201-d is understood to have been to combat tobacco smokers and drinkers of alcohol from being discriminated against.
Indeed, § 201-d prohibits an employer from refusing to hire, employ, license, or discharge an employee because of his or her (1) individual political activities outside of working hours and off the employer’s premises; (2) legal use of consumable products prior to and after the conclusion of the employee’s working hours and off the employer’s premises; (3) legal recreational activities outside work hours and off the employer’s premises; and (4) 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.
Nearly 30 years later, there is sparse caselaw interpreting and adjudicating § 201-d claims. With that said, some § 201-d cases have tested the borders of the law, including cases where an individual alleged § 201-d violations where their employer terminated their employment for violating its fraternization policy by dating a coworker. Notably, courts have rejected that “a dating relationship” falls within the definition of “recreational activities” as defined in § 201-d.
MRTA’s amendment of § 201-d may spark an uptick in claims made under this law.
MRTA amends § 201-d to provide 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.
However, the law also expressly states that it is not a violation of § 201-d when the employer takes action related to the use of cannabis when:
Additionally, MRTA states that it is not intended to:
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