On March 31, 2021, New York State approved the Marijuana Regulation and Taxation Act (MRTA), making adult use of cannabis legal in the state. In October, the New York Department of Labor issued new guidance on adult cannabis use and the workplace, which covers all New York state employers. Here are some highlights…

As reported by the National Law Review, under NY Labor Law 201-D, “Employers cannot discriminate against employees over the age of 21 based on their use of marijuana provided it takes place outside the workplace, outside working hours, and when not using the employer’s equipment or property.”

Does this mean employers can’t have policies against using marijuana? No. An employer can prohibit its use at work, during meal and rest breaks, and when an employee is on call. What’s more, employers can prohibit marijuana possession on company property, including company vehicles. Finally, employers can take action against an employee if his/her use of marijuana outside of work impairs the employee’s ability to perform job duties or interferes with an employer providing a safe work environment.

What’s still a little fuzzy is how an employer can prove impairment, since it will be based on objectively articulable indications (not the very limited instances when a drug test can be used or the smell of marijuana on a person) and could actually uncover a disability. For example, let’s say an employee operates a heavy machine in an unsafe and reckless manner. It may be an articulable symptom of impairment under the law; it could also be due to a protected disability, triggering the process to determine if an accommodation is needed and can be provided.

In New York, an employer:

• Cannot test for it unless required by federal law; an employee is impaired while working and articulable symptoms interfere with the employer’s ability to provide a safe and healthy workplace per state and federal safety laws; or it would result in loss of a federal contract or funding.
• Can test for it when federal or state law makes drug testing a mandatory condition of an employee’s position (i.e., drivers of commercial motor vehicles or for-hire vehicle motor carriers).
• Can take employment action (but doesn’t have to) if an employee is found to have used marijuana at work.

There are still some hazy areas, like New York’s Scaffold Law which puts liability for gravity-related worksite injuries on the construction company or project owner. The jury’s still out on how this will  play out. Unfortunately, it may take some court cases to bring that level of clarity.

In the meantime, employers should:

• Review/update related policies to ensure they’re in
• Identify objectively articulable impairment signals and train managers and supervisors what they are and how to spot them.
• Educate employees on marijuana use policy.

For assistance or answers to questions, contact New York’s Office of Cannabis Management or consult with a legal advisor.

While RBT CPAs can’t provide legal advice related to the NYS marijuana laws, we can help with your tax and accounting needs. Click here to get started.