What You Need to Know About the New York Marijuana Regulation and Taxation Act

On March 31, 2021, New York Governor Andrew Cuomo signed into law the New York Marijuana Regulation and Taxation Act (“MRTA”).  The MRTA expands the use of medical cannabis, legalizes recreational use of cannabis for adults 21 and older, and institutes the Office of Cannabis Management within the Division of Alcoholic Beverage Control to regulate the authorized growth and sale of cannabis.

Effective immediately, the MRTA provides employment protections for employees’ lawful off-duty use of medical and recreational cannabis.

New York employers that are not otherwise required to drug test under applicable state or federal law must update their drug and alcohol policies and procedures and train supervisors about the MRTA’s anti-discrimination employment provisions.

Medical Cannabis

Individuals eligible to use medical cannabis under the MRTA, referred to as “certified patients,” are now deemed to have a “disability” under the New York State Human Rights Law and the New York State Civil Rights Law.  Consequently, “certified patients” cannot be discriminated against based on their disability, nor can they be denied any right or privilege solely for the medical use of cannabis.

Under the MRTA, when accommodating employees prescribed medical cannabis use, employers are not obligated to implement any policies or take any actions in direct violation of federal law.

Recreational Cannabis

The MRTA also amends Section 201-d of the New York Labor Law to include protections for lawful off-duty use of cannabis in the employment context.

Specifically, as amended, Section 201-d of the New York Labor Law makes it unlawful for an employer to refuse to hire or license, discharge, or otherwise discriminate against persons who legally use cannabis before or after working hours, off the employer’s premises, and without the use of the employer’s property.  There are three limitations on the protection of off-duty conduct. An employer may restrict an employee’s off-duty use of cannabis if:

1. the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
2. the employee is impaired by the use of cannabis and this impacts the employee’s performance of his/her duties, and/or interferes with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law; or
3. the employer’s actions in permitting recreational use of cannabis would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Simply put, under the MRTA, New York employers may still establish policies that restrict cannabis use and possession in the workplace, including testing applicants and employees for cannabis use.  (Since 2019, pre-employment drug screening for cannabis is prohibited in New York City).  However, absent evidence of impairment on the job, a positive test result alone will be insufficient to justify an employer taking adverse action (e.g., discipline, termination). 

Did Your Employer Violate Your Rights Under the MRTA?

Given that the MRTA’s employment protections took effect immediately without any regulatory guidance, New York employers face uncertainty when enforcing policies and practices related to employees’ use of medical or recreational cannabis, which may result in them taking illegal actions against you.

If you have questions about your rights under the MRTA or believe that your employer took an adverse action against you because of your use of medical or recreational cannabis, we can help.  To discuss your situation or to speak to an attorney familiar with workplace rights, contact Borrelli & Associates, P.L.L.C. to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 871-4267, (516) ABOGADO, or (212) 679-5000.