Client Alert | Cannabis | Marijuana Regulation and Taxation Act
Dear Clients and Friends:
After years of discussion, New York has finally legalized marijuana (cannabis) for recreational use by adults age 21 and older. The new statute contains a variety of provisions relating to the licensing and distribution of cannabis. It also contains information on cultivation and possession for personal use, provisions on decriminalization of the possession and distribution of marijuana, as well as changes to the Family Court Act and Penal Law.
Employers will not be surprised to learn that there are provisions applying to them tucked into the lengthy bill as well.
The law amends existing Labor Law Section 201-d to prohibit discrimination against employees on the basis of the use of cannabis in situations in which all of the following are met:
- Use is before or after work;
- Use is not on the employer’s property; and
- Use does not involve employer’s equipment or other property.
The law also prohibits any “occupational or professional licensing board or office” from discriminating against a person for any activity permitted under the statue.
There are caveats to the anti-discrimination provision as it relates to employers. First, the law specifies that employers are not required to allow employees to be “impaired” while at work. Impairment is defined as “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.”
Second, the law contains two exceptions related to an employer’s necessary compliance with federal law and federal contracts. These include allowing an employer to discriminate on the basis of use if “the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate” or “the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.”
Employers will want to review their Drug Free Workplace Policies, Drug Testing Policies, and related practices for compliance. In particular, employers with federal contracts will want to understand what is required as opposed to what they may wish to do. For example, while most federal contracts require a Drug Free Workplace Policy, the policy requirements do not typically apply beyond the actual workplace and do not typically require any particular drug testing or penalty requirements. By contrast, employees governed by the U.S. Department of Transportation rules will still not be able to use marijuana because that agency has taken the position that federal drug testing rules will still bar employment and work by employees who cannot pass their drug testing requirements (which include a prohibition on marijuana use).
Employers will also want to train supervisors on what “articulable symptoms” of impairment at work are. The statute makes clear an employer will need to have documentation of the impact on performance or safety at work in order to discipline or discharge an employee for impairment at work.
Employers would do well to remember that the Compassionate Care Act (New York’s medical marijuana statute) remains in effect. Employers are still required to consider whether they can make reasonable accommodations for employees who are certified patients under that statue.
Employers will also want to watch for any regulations from the newly created Cannabis Control Board. The statute gives broad authority to the Board to regulate all aspects of the new recreational marijuana law.
As always, we remain available to assist you in your compliance efforts. To that end, we welcome you to join us for our upcoming Lunch with a Lawyer programs. April 22, 2021 will cover updates to benefits laws, including the new COBRA requirements. May 20, 2021 will be an update on New York employment law including the new marijuana statute and any hidden gems in this year’s budget bill. No RSVP is required for the programs. Watch your email or our website for details.
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This information is not legal advice and may not be suitable for all client situations. This Client Alert provides general information and does not outline all of the important considerations related thereto.
This Client Alert is not a substitute for legal guidance regarding program details and how those may be applicable to your business. As always, if we can be of assistance with these programs or any other matters, please do not hesitate to contact your HH&K attorney.
Copyright © 2021 by Hinman, Howard & Kattell LLP. This Client Alert is provided as a general information service to clients and friends of Hinman, Howard & Kattell, LLP. It should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. These materials may be considered Attorney Advertising in some states.