The Rights of Employers and Employees Related to Cannabis in New York State
Since 2021, the recreational use of up to three ounces of marijuana and 24 grams of concentrated cannabis has been legal in the state of New York, pursuant to the provisions of the Marijuana Regulation and Taxation Act (MRTA). Can an employer still require that you undergo random or mandatory drug testing? Can an employer treat you differently in the workplace because of your recreational use of marijuana when you are not working? When can an employer impose sanctions or subject you to an adverse employment consequence because of allegations of use of or impairment due to marijuana while on the job?
The MRTA Includes Basic Provisions Preventing Discrimination Based on Use of Marijuana
The Marijuana Regulation and Taxation Act specifically bans discriminatory conduct by employers premised on an employee’s use of marijuana/cannabis during non-working hours, while not on company premises, or without the employer’s property or equipment. The MRTA does, however, identify those instances where an employer may take adverse employment action against a worker who uses marijuana:
- Where the employer would be in violation of federal law for not taking action
- Where the employer would be in jeopardy of losing a federal contract or federal funding for allowing employees to use marijuana
- Where the employer is required by federal law, statute or ordinance to take certain action
- Where, while the employee is on the clock or working, he or she exhibits “articulable symptoms” of cannabis impairment that either:
- Negatively affect the employee’s ability to do his or her job
- Negatively affect the employer’s ability to provide a safe and healthy workplace
How Does an Employer Determine Whether an Employee is Impaired while on the Job?
To take any action against an employee, there must be what the laws calls an “articulable symptom” of impairment. The statute provides no definitive list or collection of symptoms that an employer may label articulable symptoms of cannabis-induced impairment. Any behavior alleged by the employer to indicate impairment by marijuana must be objectively observable. Furthermore, such observable behaviors must, of their own accord, indicate cannabis-based impairment. The smell of marijuana on an employee’s clothing, breath or body will not, in and of itself, be sufficient to constitute an articulable symptom of impairment and be the basis for disciplinary action.
Involved a Legal Issue Related to Marijuana and the Workplace?
At Stephen Hans & Associates, our attorneys are glad to answer your questions and provide legal advice. Years of experience have provided us with extensive knowledge regarding employment law, and we have represented numerous employers in matters involving workplace litigation.