Some clients have reached out based on NYS legalizing the recreational use of marijuana on March 31, 2021. Like the rest of NYS, we have limited insight into what this will ultimately mean for employers and this is a general overview of what we do know. Even though medical marijuana has been legal in NYS since 2014, this new law (The Marijuana Regulation and Taxation Act) legalizes licensed growing and distribution, as well as the use and possession of recreational marijuana.
This Act establishes a cannabis control board and an office of cannabis management charged with regulating both medical and recreational marijuana and hemp extracts. Lastly, the Act includes numerous amendments, including but not limited to changes to penal, tax and labor laws. The labor law which protects employees’ rights to engage in certain recreational activities outside of work has been modified, and generally prohibits employers from discriminating against, terminating, refusing to hire or continue to employ individuals because of their legal use of consumable products.
What does this mean to employers? The Act provides employees’ protection and makes the recreational use or consumption of marijuana off of an employer’s worksite and outside of work hours a legal recreational activity. The use of marijuana under the Act applies to individuals 21 and over in NYS, which includes employees. The law is clear this is not intended to limit the authority of employers to put in place or enforce policies related to marijuana in the workplace. Therefore, an employer will not be in violation of the law when disciplining an employee for using marijuana. The exceptions are as follows:
Employee Impairment - Employers do retain the ability to act when an employee is impaired on the job and their job performance is impacted and/or interferes with the employer’s ability to provide a safe and hazard-free workplace. If an employer has a drug testing program, it will be important to review policies and practices as marijuana remains in an individual’s system and will not necessarily indicate impairment at the time of a job-related incident.
Compliance with Federal or State Law - Employers will not be considered in violation of this new Act if they are “required” to act in compliance with other state or federal law, regulation, or mandates. It is important to note marijuana remains illegal at the federal level; however, employers should use caution if they are thinking they can apply this to employee related policies broadly.
Employer Could Lose Federal Contract or Federal Funding - Employers can act against an employee for the use of recreational marijuana, if not acting could result in the employer being in violation of federal law, or the employer could lose a federal contract and/or funding.
Some of the Act’s provisions are effective immediately while others will take many months to be put into place. What does this mean right now?
Individuals 21 and over can possess and transfer without compensation up to three (3) ounces of marijuana for recreational purposes or 24 grams of concentrated forms of the drug, like oils. Also, eligible adults are also able to cultivate up to three (3) mature and up to three (3) immature marijuana plants.
Smoking marijuana is permitted wherever smoking tobacco is allowed, although this could be more strictly regulated in public by local ordinance or the new oversight agency.
Smoking marijuana is not permitted in schools, workplaces or inside a car.
The legislation will expunge the criminal records of some individuals convicted of prior marijuana-related offenses.
Therefore, employers should evaluate and potentially update hiring policies and practices, and background check, drug-related, smoking, and standards of conduct policies as they relate to marijuana in the workplace. Also, employers should consider things like an employee transferring marijuana to others without being compensated for the transfer, the use of edibles and the use of marijuana at workplace functions.
Lastly, employers need to think about trainings for managers and employees on the subject. Again, more changes will be going into effect in the coming months when NYS officials create the regulatory guidance governing every aspect of this brand new and highly regulated industry. It will also be important to monitor local ordinances and/or other laws as they intersect with this new Act.
Disclaimer: Integra HR, LLC does not practice any type of law, provide legal counsel, or perform any other form of legal services. Like other HR consulting firms, we refer clients to legal counsel for legal services.