In March 2021, the New York State Legislature handed, and then-Governor Andrew Cuomo signed, the Marijuana Regulation and Taxation Act (MRTA or the Act). Along with legalizing the leisure use of marijuana in New York, the Act amends each the New York medical marijuana legislation and the New York Labor Legislation. These amendments considerably impression an employer’s rights and obligations vis-à-vis their staff’ use of marijuana.
The MRTA
Broadly, the MRTA legalizes adult-use, i.e., leisure use, hashish in New York State and establishes an Workplace of Hashish Administration (OCM) ruled by the Hashish Management Board. Because it pertains to employers, the Act makes modifications to the Labor Legislation and customarily prohibits adversarial actions in opposition to staff who have interaction in off-site, leisure hashish use. As affirmed by the OCM, “the legislation isn’t supposed to restrict the authority of an employer to determine insurance policies and procedures prohibiting staff from being impaired by hashish within the office, and employers should not required to interact in any conduct that may in any other case violate federal legislation or trigger the employer to lose federal funding.” Nonetheless, in apply, the legislation (1) successfully requires employers to interact in a wholesale reassessment of their present insurance policies round use and testing, (2) codifies sure judicial holdings round medical use and (3) folds New York’s medical use legislation, the Compassionate Care Act, into the auspices of the OCM.
Medical Use
Staff who’re within the Medical Hashish Program are thought-about routinely to be disabled and, as such, are shielded from discrimination on that foundation. This additionally signifies that employers are required to interact within the interactive course of/cooperative dialogue when assessing the necessity for an lodging for these staff. Word, to the extent an employer doesn’t affirmatively know that an worker participates in a medical marijuana program, the suspicion that an worker is impaired at work (see under) could represent a “motive to know” that an worker is disabled and will subsequently set off an employer’s obligation to interact within the interactive course of/cooperative dialogue previous to taking any adversarial employment motion.
Prohibited Conduct
The MRTA amends New York Labor Legislation § 201-D and makes it typically illegal for an employer to take the next actions on account of a person’s use of hashish pursuant to the MRTA, outdoors of labor hours, off the employer’s premises, and with out use of the employer’s tools or different property:
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Refuse to rent, make use of or license somebody
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Terminate the employment of an worker
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In any other case discriminate in opposition to a person in any of the next:
Exceptions
The MRTA amends New York Labor Legislation § 201-D by including a subsection 4-a, which permits employers to take adversarial actions in opposition to worker/ candidates the place:
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An employer is/was required to take such motion by state or federal statute, regulation, or ordinance, or different state or federal governmental mandate (for instance, obligatory drug testing is required for drivers of economic motor automobiles in accordance with 49 CFR Half 382; see additionally, e.g., NY Car and Site visitors Legislation § 507-a, which requires obligatory drug testing for for-hire car motor carriers in accordance with 49 CFR 382.)
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The employer can be in violation of federal legislation
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The employer would lose a federal contract or federal funding
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The worker, whereas working, manifests particular articulable signs of hashish impairment that lower or reduce the worker’s efficiency of the their duties or duties
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The worker, whereas working, manifests particular articulable signs of hashish impairment that intrude with the employer’s obligation to offer a protected and wholesome office as required by state and federal office security legal guidelines, which means the worker manifests particular articulable signs of impairment that:
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Lower or reduce the efficiency of their duties or duties
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Intervene with an employer’s obligation to offer a protected and wholesome office, free from acknowledged hazards, as required by state and federal occupational security and well being legal guidelines.
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Articulable Symptom of Impairment
What They Are
Because the steering issued by the OCM makes clear, “there isn’t a dispositive and full record of signs of impairment.” Articulable signs of impairment are “objectively observable indications that the worker’s efficiency of the duties of their place are decreased or lessened.”
Articulable signs additionally could also be a sign that an worker has a incapacity and will set off an employer’s obligations to interact the worker within the interactive course of/cooperative dialogue (see above relating to Medical Use).
What They Are Not
Use of hashish isn’t illegal and, subsequently, a sign that an worker has used hashish (corresponding to smelling of hashish, or testing constructive for hashish), standing alone, can’t be cited as an “articulable symptom of impairment.” OCM states that “solely objectively observable indications that an worker’s efficiency of the important duties or duties of their place are decreased or lessened could also be cited.”
Distant Work and Off-Web site Use
A couple of notes relating to distant and off-site employees:
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Out-of-state staff should not protected by the MRTA.
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A personal residence isn’t a “work web site” for functions of staff who do business from home. Nonetheless, OCM pointers point out that “an employer could take motion if an worker is exhibiting articulable signs of impairment throughout work hours … and will institute a common coverage prohibiting use throughout working hours.”
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Employers can’t prohibit the usage of hashish whereas an worker is on go away or off the work web site, until such prohibition is compliant with New York Labor Legislation § 201-D (4)(a) (see Exceptions, above).
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Prohibitions on hashish use in an organization car are permitted even the place an worker has use of the car after common enterprise hours or work shifts.
“Work Hours”
Employers could prohibit hashish use throughout “work hours.” The OCM has adopted the Labor Legislation’s and the Honest Labor Requirements Act’s (FLSA’s) definition of labor, i.e., all hours an worker is permitted or “suffered to work,” even when the worker leaves the worksite. These embody:
Word: Hashish use additionally could be prohibited throughout on-call hours, however this prohibition ought to be exercised with warning because it pertains to hourly, non-exempt staff and subsequently could create an obligation to pay wages underneath the New York Labor Legislation, the Minimal Wage Orders, and the FLSA’s “ready to be engaged” exception to paying on-call hourly staff.
Office Insurance policies
• Employers can:
Create insurance policies that prohibit staff from utilizing hashish on the work web site and/or performing employment duties whereas impaired by hashish.
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Employers can’t:
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Implement new or proceed preexisting insurance policies that prohibit hashish use off the work web site until the prohibition is permitted underneath New York Labor Legislation § 201-D (4)(a).
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Require staff to waive their rights underneath § 201-D of the Labor Legislation as a situation of rent or continued employment.
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Applicability
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The MRTA applies to all New York State employers, no matter trade, measurement or occupation.
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The MRTA doesn’t apply to non-employees, i.e.:
Drug Testing
Drug testing isn’t allowed until it’s permitted underneath New York Labor Legislation § 201-D (4)(a).
Federal Authorities Contractors/Interplay with the Drug Free Office Act
Neither the Drug Free Office Act of 1988 nor the principles adopted thereunder authorize drug testing of staff.
Jeremy Buchalski (Associate-New York) and Lindsay Kalick (Associate-White Plains) contributed to this text.
