Now that New York State has legalized the recreational use of marijuana, there are some changes to the law as it relates to employment.
In May 2020, New York City implemented NYC Administrative Code Section 8-107(31) making it employment discrimination for employers to utilize pre-employment drug tests for marijuana. The Code recognized carve outs for federal employers, employees with positions requiring commercial driver’s licenses, and positions with children and vulnerable populations.
Effective March 31, 2021, Senate Bill S854A legalized recreational marijuana for adults over 21 years of age. After years of delay, rumor mills are flying surrounding Governor Cuomo’s motive in signing the bill amidst the height of his sexual harassment scandal. This bill specifically modifies Section 201-d (2) of New York Labor Laws prohibiting an employer from refusing to hire, from discharging an employee, or from discriminating against an employee in compensation, promotion, or employment conditions based on the employee’s legal, off-duty marijuana use.
The law provides several carve-outs allowing employers to take adverse action where statute requires action, where conduct is actionable under an established workplace policy, or where an individual’s action is considered illegal, constitutes habitually poor performance, incompetency, or misconduct. Moreover, employers can take adverse action where marijuana impairs the employees job performance, defined as a manifestation of specific articulable symptoms which interfere with the employee’s work performance, or obligations to provide a safe workplace. Section 201-d(4).
Given these changes, employers should modify their employment policies related to marijuana usage, such that employers can clearly prohibit at work marijuana usage and at-work marijuana possession. However, employers can no longer prohibit off-duty marijuana use where it is legal. In the coming months, New York State is expected to issue guidance related to implementing the newly passed law. For now, the New York State Bar Association has issued guidance that New York lawyers can use to help ensure recreational and medicinal marijuana businesses comply with the law’s requirements, and attorneys can even accept payment in the form of equity in the business’ aided. Lawyers, like other persons, can recreationally use and grow lawful quantities of marijuana products and still comply with their ethical obligations. As always, Berke-Weiss Law will stay abreast on any changes, and look out for any guidance within the changing field.
Written by Law Clerk Katina Smith
