On March 31, 2021, Governor Andrew Cuomo signed the New York MarijuanaRegulation and Taxation Act. The new law legalizes the recreational use of marijuana products and prohibits employers from discriminating against employees based on the legal use or possession of cannabis products while off duty and outside of the workplace. 

The new law does carve out exceptions permitting employers to continue to take employment action in certain situations. Employers may still prohibit marijuana use or possession during work hours, on employer premises and while using an employer’s equipment or other property. 

In addition, employers may take adverse action against employees who engage in off-duty marijuana use if: i) so required by state/federal law, regulation, ordinance or other state/federal governmental mandate; or ii) complying with the Act would require an employer to violate federal law or would result in the loss of a federal contract or federal funding. 

Further, employers are allowed to take an adverse employment action against an employee who, while at work, “manifests specific articulable symptoms” of impairment from the use of cannabis. The following are indications of such impairment: 

... the employee manifests specific articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, or such specific articulable symptoms interfere with an employer's obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law.

As a result of the new law, employers cannot rely on drug tests or rely on knowledge that an employee uses marijuana outside of work to discipline their employees. Employers must also be aware of the signs and behaviors that might give rise to reasonable suspicion of impairment at work. 

Should you have any questions regarding the new law or how it affects your business, please contact ALG.