New York Legalizes Recreational Marijuana: What Employees Need To Know

On March 31, 2021, New York Governor Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA) into law. The MRTA takes effect immediately, however, the sale of recreational-use marijuana is not expected to become legal for another year or two, as the state must create a regulatory framework for the cannabis industry. While this comes nearly eight years after the legislation was first introduced, New York employers and employees alike must consider the ramifications the legalization of recreational marijuana will have on the workplace.

What are the rules under MRTA?

Under the MRTA, adults who are at least 21 years old may possess:

  • Up to three ounces of marijuana;
  • Up to 24 grams of concentrated marijuana, and
  • Are permitted to use marijuana and concentrated marijuana unless otherwise prohibited under state law.

How does MRTA impact the New York workplace?

As per the MRTA, the intention of the law is not to “limit the authority of . . . employers to enact and enforce policies pertaining to cannabis in the workplace” or “exempt anyone from any requirement of federal law or pose any obstacle to the federal enforcement of federal law.” Under federal law, marijuana is not legal as it remains classified as a Schedule I controlled substance.

In addition, MRTA amends Section 201-d of the New York Labor Law (NYLL) to protect an employee from discrimination if the employee uses marijuana outside of business hours, off of the employer’s property, and without the use of the employer’s equipment. Employers must additionally “adhere to policies regarding cannabis use in accordance with” Section 201-d of the NYLL.

However, employers are not in violation of Section 201-d of the NYLL if they take an action related to an employee’s use of marijuana when:

  • The employer’s actions were required by state or federal statute, regulation, or government mandate;
  • It would cause the employer to be in violation of federal law, would result in the loss of a federal contract or federal funding, or
  • The employee is impaired by the use of cannabis at work.

It is also interpreted that New York employers cannot take adverse action against an employee based solely on a positive test for marijuana and while pre-employment drug testing for marijuana has been prohibited in New York City since 2020, it will now be unlawful for all New York employers to reject an applicant based exclusively on a positive marijuana test.

Further, the law explains the state medical cannabis program which has been legal since 2016 for limited medical conditions. Now, medical providers will have the discretion to recommend medical marijuana for any condition. This means that employers need to be mindful of medical marijuana use–however, it is still not required for an employer to allow its use in the workplace.

The introduction of MRTA is likely to cause controversy for some New York employers. But if your employer is discriminating about you for what you do outside of work, Brown Kwon & Lam can help.

MRTA Impact on NY Workplace: Brown Kwon & Lam

If you are discriminated against as a result of an employer’s noncompliance with MRTA or are denied employment based on medical marijuana usage, you may have a discrimination claim. Do not handle these issues alone. Contact the employee rights attorneys of Brown Kwon & Lam today.

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