TLF: Cannabis Law Update for Employers

Apr 23, 2021

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ALBANY, N.Y. (April 23, 2021) – On March 31, 2021, Governor Cuomo signed into law the Marijuana Regulation and Taxation Act. This law legalized recreational cannabis use for individuals 21 and over, creating a major new source of tax revenue for the State of New York. This law also created significant new issues for employers relative to cannabis use by employees.

Under the new cannabis law, it is unlawful for an employer to refuse to hire, employ or license, fire, or discriminate against an individual in their compensation, promotion, or terms of employment because of an individual’s legal use of cannabis or because their legal recreational activities include cannabis. This applies to cannabis use (1) outside of the employee’s work hours, (2) off the employer’s premises, and (3) without use of the employer’s equipment or property.

However, an employer does not violate the Labor Law when the employer takes actions because the employee is impaired by the use of cannabis. Under the law, “impaired” means that the employee “manifests specific articulate symptoms” that decrease the employee’s performance or duties. This also includes specific articulated symptoms that interfere with the employer’s duty to provide a safe and healthy workplace, free from hazards required by state and federal law. The law further protects employer actions mandated by state or federal law.

As this law is rolled out, there are certain to be issues with the prohibitions on using off duty recreational cannabis use in employment decisions, especially since it creates new protections for individuals who may not otherwise fall into a protected class. It also raises new questions for employers who expect employees to operate company vehicles, outside of those positions requiring a Commercial Drivers’ License (“CDL”), since federal law will still prohibit the issuance of CDLs to cannabis users.

If an employee operating a company vehicle gets in an accident and tests positive for cannabis because of off duty use, what will be the result? How will the employer address the issue and or avoid liability if they are unable to prohibit off duty use? These and many other issues await employers going forward and it is advisable that employers seek counsel if and when such issues arise.
Written By: TLF’s Leading Labor & Employment Attorney, Colin R. Boyle, Partner at TLF

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