On March 31, 2021, New York State legalized the use of recreational marijuana for adults 21 and older. There are a number of aspects to the new law, such as rules regulating the creation of marijuana dispensaries, the creation of a new taxation scheme and the decriminalization of certain marijuana offenses and others that will not be addressed in this legal alert. Instead, this alert will address the immediate effects of the law on private employers, like nonprofit organizations.
The new law effectively makes the off-duty use of marijuana similar to the off-duty use of alcohol or other legally permitted recreational activities. This means that, generally speaking, an employer cannot discriminate against an employee for engaging in permissible off-duty recreational activities, including marijuana use. However, an employer can prohibit the use, possession and distribution of marijuana in the workplace, and, in many circumstances, can discipline employees who engage in such behavior.
In addition, employers likely would not be in violation of the law if the employer takes action in relation to an employee’s use of marijuana if: the employer’s actions were required by state or federal law (the use of marijuana is prohibited by federal law); the employee is impaired by the use of marijuana/cannabis and manifests “articulable symptoms” while working that decrease work performance or that interfere with an employer’s obligation to provide a safe and healthy workplace under state of federal law; or, if the employer’s actions would require an employer to commit any violation of federal law that would result in the loss of a federal contract or federal funding.
What Should Employers Do Now?
Employers should review and possibly amend their current policies, such as pre-employment drug screening policies and substance abuse policies, to ensure that they do not prohibit the off-duty use of recreational marijuana. In addition, employers should modify any hiring procedures that include any inquiry into the off-duty use of marijuana.
Because many of the aspects of this new law are still unknown and some of the exceptions to the law are not entirely clear (for example, what behavior would constitute “articulable symptoms”), employers should contact counsel if they are not sure how an action against an employee might interfere with the new law.
Please contact the White Plains office of Pro Bono Partnership at 914-328-0674 with any questions.
This document is provided as a general informational service to volunteers, clients, and friends of Pro Bono Partnership. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does distribution of this document create an attorney-client relationship.