New law questions whether employers can take action against workers who smoke pot just before their work shift

Seyfarth Synopsis: New York is the youngest state to pass a law to protect the use of non-medicinal cannabis for those aged 21 and over. As one of the largest cannabis markets in the country, New York will eradicate the criminalization of possession of less than three ounces of cannabis and significantly expand the list of conditions eligible for medicinal cannabis use under current state law. Although the new law will not go into effect immediately, New York employers should review their current policies and drug testing practices to ensure compliance with New York law.

On March 30, 2021, New York lawmakers approved The Marihuana Regulation and Taxation Act, which legalized the sale and use of cannabis for adults aged 21 and over, and was subsequently signed into law by Governor Andrew M. Cuomo. New York’s actions come roughly a month after its neighbor New Jersey passed a similar bill decriminalizing cannabis use. The law allows New Yorkers to own up to three ounces of recreational cannabis. Cannabis use is permitted in public wherever tobacco smoking is legal. However, as explained below, it is not permitted in the workplace or in the car. The new law did not change the requirement that citizens not drive under the influence of cannabis.

The new law is also designed to expand the scope of the existing medical cannabis program in New York by expanding the list of conditions treated. In addition, the existing cap on the amount of cannabis patients can access will be increased from a 30-day supply to a 60-day supply.

New York law will affect jobs in a number of ways:

1. Employers can still ban cannabis and workplace impairments.

The law states that none of its requirements are intended to limit an employer’s power to establish and enforce policies regarding cannabis in the workplace, which means employers can continue to maintain drug and alcohol-free workplaces. Employers are not required to consider the use, possession, sale or transfer of cannabis in the workplace and may prohibit workers from being harmed during working hours.

2. New bans on workplace discrimination based on cannabis use outside of work.

The law prohibits employers from refusing to hire, employ or license or dismiss an individual, or otherwise discriminate against an individual in relation to compensation, promotion, or conditions, privileges or privileges of employment, because an individual is exposed to consumable products, including cannabis, used in accordance with legal requirements with state law or a person’s legal recreational activities, including cannabis in accordance with state law. The Cannabis Act revises the New York Labor Code to prohibit employers from firing or discriminating against an employee for cannabis use immediately before a work shift. Employers cannot refuse to hire for legal cannabis use. Employers can only take employment measures that are based on conflicting federal and state statutory provisions, federal treaties, and “specific articulable symptoms” of cannabis impairment that “interfere with an employer’s obligation to provide a safe and healthy workplace without recognized hazards. ”

Therefore, unless there is an exception, employers may need to review and revise their drug testing policies for appropriate pre-hire suspicion and testing, especially for non-safety-related employees.

3. Effective date still unclear

New York law doesn’t provide an exact start date, but most don’t expect sales to start at least by 2022. The next step is for New York to develop a system of operating, regulating, taxing, and allocating industrial products licenses to those who produce and sell cannabis

4. No private cause for complaint

The law does not contain a private right of action. However, we can expect litigation in courts in New York, as we’ve seen courts in other jurisdictions allow injured parties to sue under medical cannabis laws, even without an express private right of action in law.

5. Safety issues for employers

The National Security Council recommends a zero tolerance policy for cannabis for people in security-related positions. This recommendation is based on the decline in judgment and motor skills, and on the increase in accidents, incidents, employee injuries, and employee fatalities. After workplace deaths, a large percentage of post-mortem toxicology shows evidence of impairment from cannabis. New York’s specific prohibition on discrimination against employees who consume cannabis before their shift and restricting action to employees who have “specific articulable symptoms” are contrary to occupational health and safety. Under the new law, it appears that an employer cannot discipline a crane operator who admits that he has smoked cannabis in his car before his shift unless he shows “specific articulable symptoms” of impairment. The law thus appears to undermine employers’ ability to discipline and fire workers who are severely impaired by cannabis as long as the impairment is not externally apparent. New New York law could undermine good faith drug and alcohol testing and employers’ ability to protect the health and safety of workers.

6. Next steps for employers

New York has left vague about how the new cannabis law will affect employers with significant safety concerns. New York City companies should consult a seasoned labor advisor to determine what changes to their drug testing policies may be needed, including pre-hire testing procedures, and to advise supervisors responsible for enforcing drug safety policies.