On March 31, 2021, New York Governor Andrew Cuomo signed the Marihuana Regulation and Taxation Act (the “MRTA”) into law, making New York the latest state to legalize recreational marijuana.  The MRTA allows adults aged 21 and older to possess, purchase, display, obtain, and transport marijuana in limited quantities.  The MRTA takes effect immediately, although the sale of recreational-use marijuana is not expected to become legal for at least another year.  The legalization of marijuana will have significant effects on many aspects of society in New York, including in the workplace.

Even before the MRTA was signed into law, New York Labor Law (“NYLL”) protected certain legal off-duty conduct by employees, including the use of consumable products, such as alcohol and tobacco.  The MRTA explicitly amends Section 201-d of the NYLL to include cannabis.  Now, employers may not take adverse action against an employee because of their legal use of marijuana prior to the beginning or after the conclusion of the employee’s work hours, provided such use takes place off the employer’s premises, and without the use of the employer’s equipment or other property.  Employees who claim that their rights are violated under Section 201-d of the NYLL may file a private lawsuit for equitable relief and damages.

While the MRTA allows employees to legally use marijuana before and after work hours, it does not allow them to report to work under the influence of marijuana or to use marijuana in the workplace.  Rather, the MRTA makes clear that it is not intended to limit the authority of employers “to enact and enforce policies pertaining to cannabis in the workplace.”  Specifically, employers are not considered to be 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 ordinance, or other state or federal government mandate;

• The employee is “impaired” by the use of cannabis; or

• The employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law, or would result in the loss of a federal contract or federal funding.

Under the MRTA, “impaired” means that the “employee manifests 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 work place, free from recognized hazards, as required by state and federal occupational safety and health law.”  It is unclear what “specific articulable symptoms” of impairment means in this context, and we can expect uncertainty as to how and when employers can rely on this provision of the new law.

Employer Takeaways and Considerations

New York employers should carefully review and revise their drug and alcohol policies to ensure compliance with the MRTA.  Specifically, they may need to revise their off-duty conduct rules, drug free workplace policies, and drug testing programs.  However, employers may continue to maintain and enforce policies prohibiting employees from using or possessing marijuana in the workplace or working while “impaired” by the use of marijuana.  Employers in New York City must also remain cognizant of the New York City Commission on Human Right’s ban on pre-employment marijuana testing.

Employers should stay up-to-date on any developments with respect to the MRTA and its impact on the workplace.