NYS Legalizes Recreational Marijuana. An Employer's Perspective.

NYS employers, it's time to shred your current drug policy and re-write the drug language from your Employee Handbooks. Times are changing!

On March 31, 2021, New York legalized recreational marijuana. The Marijuana Regulation and Taxation Act ("MRTA") legalizes and regulates cannabis use and possession for adults above 21. The legalized use of marijuana is effective immediately, but the retail sales of marijuana won't begin until mid-2022. 

This change directly impacts New York employers' drug policies and their ability to take actions against applicants and employees based on recreational marijuana usage.

Simply recommends that employers in other states take notice. Often state legislation passed in NYS cascades through the northeast as other states follow suit.  

What is MRTA? 

A simple overview of the new law allows adults who are 21 and older to possess:

1. Up to 3 ounces of cannabis; and
2. Up to 24 grams of concentrated cannabis.

Like alcohol, driving while under the influence of cannabis will be a crime. 

Additionally, while the law immediately allows for using cannabis in public, it cannot be smoked or vaped in locations prohibited by state law, such as:

1. Areas where smoking tobacco is prohibited
2. Workplaces
3. Colleges and universities
4. Hospitals
5. Within 100 feet of a school

What is the Effect on NYS Employers?

MRTA states New York employers may not refuse to hire, employ, discharge, or discriminate against cannabis partakers who partake while:

1. Lawfully while off-duty and off-premises; and
2. While not using the employer's equipment or other property.

Of course, an employer can take action if an employee is impaired by the use of cannabis, specifically:

• The employee shows clear, visible symptoms while working that decrease the performance of their duties or position
• The employee shows clear, visible signs such that it interferes with an employer's requirement to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws

Interestingly enough, adverse action is allowed against an employee who uses recreational cannabis if the employee's employment jeopardizes a federal contract. I.e., a federal contract that requires subcontractor drug testing. 

What about Medical Marijuana?

After being certified by a medical professional, the types of marijuana products used to treat certain medical conditions will expand.

Strikingly, MRTA will allow patients subscribed to medicinal marijuana the ability to grow six mature plants and six immature plants, at home, per household. 

MRTA does not change the New York Human Rights Law, and medical marijuana users have a verified "disability" under the law. In essence, employees who use medical marijuana receive the same rights that injured workers have under worker's compensation law—specifically when such injured workers use prescribed medications that may prohibit, restrict, or require modifying their job duties.

Social and Criminal Justice Implications?

MRTA will expunge previous marijuana convictions for actions that are now legal. MRTA also calls for the state police to increase the number of certified drug recognition experts, raise drug recognition awareness, and updated roadside impaired driving enforcement training.

As always, additional information to follow once it becomes available.