On March 31, 2021, just over a month after New Jersey became the 13th state to legalize the recreational use of marijuana, New York State followed suit by enacting the “New York Marihuana Regulation and Taxation Act” (MRTA). Among other things, the MRTA legalizes the recreational use of marijuana by adults 21 years of age and older, establishes an “Office of Cannabis Management” charged with enforcing a regulatory framework governing medical, adult-use; expands access to medical marijuana to people with certain medical conditions; and permits home cultivation of cannabis (which, incidentally, remains illegal under the Garden State’s law).

The MRTA also provides for automatic expungement or resentencing for anyone with a previous marijuana conviction that would now be legal under the law. The law is expected to generate tax revenues of $350 million per year and has the potential to create 30,000 to 60,000 jobs. Local municipalities are permitted to opt-out of having retail dispensaries in their jurisdictions and issuing on-site consumption licenses – however, they cannot opt-out of other provisions of the law.

From an employment standpoint, it is important that employers familiarize themselves with this new law, as it impacts what employers can and cannot do with respect to marijuana use by their employees.

First, we’ll go over what employers can do with respect to employee marijuana use. As in the past, employers are not required by this law to allow marijuana use during the workday or on company premises, and they may continue to take disciplinary action against employees who exhibit signs of impairment while on the job. For those transportation companies that employ drivers, the MRTA does not affect existing laws that prohibit driving while impaired. The law likewise does not give employees license to smoke marijuana wherever they please. Laws prohibiting the smoking of tobacco in vehicles and public places apply with equal force to the smoking of marijuana.

Now, for what employers may not do vis-à-vis marijuana use by their employees. New York has long had on its books what is commonly referred to as the “legal activities law.” This law, which is part of the New York Labor Law, prohibits employers from discriminating against employees based upon their political activities, legal use of consumable products, legal recreational activities, or membership in a union. The legal activities law makes it “unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment” as a result of a lawful activity the employee engaged in while not working and while off company premises. Thus, an employer may not take adverse action against an employee for having attended a political rally over the weekend, or because the employee smokes, or plays tennis.

With the passage of the MRTA, an employer is now prohibited from discriminating against an employee for lawful marijuana use as well. Marijuana is no longer classified as a controlled substance under the New York Public Health Law, and the legal activities law has been modified to designate cannabis as a “consumable product,” and classify cannabis use as a “recreational activity.”

As is discussed above this does not mean an employee may report to work high. If an employee comes to work and, as a result of earlier marijuana consumption, is unable to perform their work effectively and safely, the employer may still discipline or take other adverse action against that employee. Likewise, if an employer is required by state or federal statute, regulation, ordinance, or other state or federal government mandate to take action in response to an employee’s use of marijuana, the employer will not be deemed to have violated the MRTA.

The MRTA does not override any existing federal laws or regulations that prohibit marijuana use. For example, the U.S. Department of Transportation has mandatory procedures for conducting workplace drug and alcohol testing and does not permit the use of medical or recreational marijuana.

Lastly, note that the New York City Taxi & Limousine Commission’s rules authorize revocation of a TLC Driver License, after a hearing, when a driver fails a drug test “as a result of illegal drug use or failure to comply with drug testing procedures.” Rule 68-14(a)(4). Now that cannabis is no longer classified as an “illegal drug,” it appears doubtful that a positive test for cannabis alone will be grounds for the revocation of a TLC license going forward. Driving while impaired by cannabis or other drugs in violation of New York Vehicle and Traffic Law § 1192.4, on the other hand, remains solid grounds for license revocation under Rules 68-14(a)(1)(A) and (3)(R), and 68-15(a)(1)(i).

Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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