The Marijuana Regulation and Taxation Act (MRTA) is a 2021 law passed in New York State that legalizes the recreational use of cannabis while also amending New York Labor Law. Employers and employees in New York should have a full understanding of this law and their rights and obligations under it. As an employment law firm that serves the state of New York, The Noble Law wanted to dig into the details of what this New York employment law means for employees and employers alike!
We’ll start with the basics. The MRTA prohibits an employer from taking the following actions because of an individual’s cannabis use (as long as that usage adheres to the terms of the law):
- Refuse to hire, employ, or license someone
- Terminate the employment of an employee
- Discriminate against an employee in the form of compensation, promotion, or other privileges/conditions of employment
How do you know if an employee’s usage of marijuana adheres to the conditions of MRTA? It must take place outside of work hours, off the employer’s premises, and without the use of the employer’s property.
To put it simply – unless the policies meet the relevant components of New York Labor Law, outlined below, employers cannot prohibit cannabis use outside of working hours and off the work site. As this article from the National Law Review notes (recommended for continued reading on this subject), MRTA “effectively requires employers to engage in a wholesale reassessment of their current policies around use and testing.”
When Can Off-Site Cannabis Usage Be Regulated by Employers?
If the use of off-site cannabis by employees would otherwise violate federal law or cause the employer to lose federal funding, or it can remain prohibited. For example, subjecting drivers of commercial vehicles to drug testing is not precluded by this law, because mandatory drug testing of “for-hire vehicle motor carriers” is a legal requirement in New York State.
Even if the cannabis usage takes place off-site, if the employee “manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of their tasks or duties”, an employer may take adverse actions against them. The employer’s obligation to provide a safe and healthy workplace that is “free from recognized hazards” may also allow them to act against employees due to cannabis usage.
An essential qualifier – the definition of “articulable symptoms” in New York employment law is not met by an employee smelling of cannabis or testing positive for it. Rather, the employee must manifest specific indications that marijuana use has decreased or lessened the performance of their duties or tasks, or that the use has interfered with the employer’s responsibility to provide a safe and healthy work environment that is “free from recognized hazards.”
An essential qualifier – if an employer believes that an employee is impaired by cannabis use while at work, this may constitute a “reason to know” that triggers a legal obligation for the employer to engage in an “interactive process/cooperative dialogue” about what reasonable accommodations for the employee might look like.
Under New York employment law, employees who use medical cannabis are disabled, and thus protected from employment discrimination on that basis. If an employer does not know if an employee uses medical marijuana and they suspect that said employee is impaired at work, their legal obligation is to engage in a cooperative dialogue with that employee BEFORE taking any adverse employment action.
The Noble Law is committed to leveling the field for employees. If you or someone you know is dealing with a New York State employment matter, reach out to us on our website or by calling 212-662-6500.