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NY DOL Offers Guidelines on Recreational Marijuana in the Workplace

Posted by David Holland | Nov 01, 2021 | 0 Comments

employment law ny

The New York Department of Labor recently amended significant portions of employment laws in response to the legalization of recreational marijuana. The addition of the Marijuana Regulation and Taxation Act (MRTA) officially legalized cannabis possession and use for New York residents above the age of 21. With these new changes, the New York Labor Law Section 201-D states that employers can't discriminate against employees for recreational use of marijuana so long as it is not during work hours.

Unlawful Discrimination

With the passing of MRTA, it's now illegal for employers to discriminate against employees using marijuana outside of work. Cannabis is now a legal, consumable product in the state of New York. If an employee follows regulations within their workplace, they can't be penalized for using marijuana recreationally in their off time outside of work.

Some of the most pertinent details that employers in NY state should be aware of are:

  • Judging an employee's work performance on smell will no longer be considered.
  • Employers may only address clear and articulable specific symptoms of cannabis impairment and work interference.
  • Since drug tests cannot determine accurate impairment, they are also prohibited in the workplace.
  • Employers can prohibit cannabis use during work hours, break times, and on company property.
  • With limited exceptions, employers cannot drug test an employee for marijuana use

Employee Guidelines

In accordance with MRTA, recreational marijuana use is now legal in the state of New York, which means it's illegal for employers to terminate your job based on cannabis use outside of the workplace. However, it's important to note that employers can lawfully prohibit cannabis use on company property or during work hours.

Some of the most pertinent details that employees in NY state should be aware of are:

  • If an employee has already been fired for marijuana use, an employer is not obligated to hire them again.
  • Employees cannot possess or consume cannabis at their workplace.
  • If cannabis use significantly reduces an employee's ability to perform their job, an employer can legally terminate them from the position - this also applies if employee marijuana use is jeopardizing the safety of others at the workplace.

Other Important Information

While employers can prohibit cannabis use during work hours, they can't prohibit workers from using marijuana or other cannabis-derived products outside of work. These laws apply to all public and private employees in the state of New York; this does not change with business size, occupation, or industry. The only major exception to this is if employees are under the age of 21.

Students who aren't employees do not apply to the law. However, the MRTA and New York Labor Law Section 201-D applies to all employees regardless of educational status. The law also applies to all employees regardless of immigration or citizenship status.

Insurance companies can now set premium prices to include cannabis usage; employee usage may be proven with a urine test. Finally, it is now unlawful for employers to require a drug test for cannabis unless part of a collective bargaining agreement or other established protocol.

Defending Your Rights

If you were discriminated against despite the legalization of recreational marijuana use, it's time to seek help. You may be protected under the MRTA and New York Labor Law Section 201-D. It's important to fight for your right to work.

I have worked cases regarding employment law in NY state for decades while also serving as a marijuana defense attorney. I've dedicated my career to helping those individuals who've been left helpless because of archaic and ruthless anti-cannabis laws.

Please reach out if you or a loved one need help.

About the Author

David Holland

As Executive Director of Empire State NORML and President of the New York City Cannabis Industry Association, David has been a leading advocate in the cannabis space for over 20 years. He has represented clients in marijuana related proceedings everywhere from traffic court to the United States Supreme Court, and he helped obtain clemency for five elderly prisoners servicing life without parole for marijuana. David also handles complex civil and criminal litigation in other areas including employment, First Amendment, and business.


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