In New York City, an employer may not administer a drug test to a job applicant prior to employment. That is not the same for the rest of the State. Employers may test an employee once the applicant is hired.
However, under the MRTA, there are a number of employment protections for lawful consumers of cannabis in New York.
Section 127(1) – “No person, registered organization, licensee or permittee, employees, or their agents shall be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil liability or disciplinary action by a business or occupational or professional licensing board or office, solely for conduct permitted under this chapter. For the avoidance of doubt, the appellate division of the supreme court of the state of New York, and any disciplinary or character and fitness committees established by law are occupational and professional licensing boards within the meaning of this section. State or local law enforcement agencies shall not cooperate with or provide assistance to the government of the United States or any agency thereof in enforcing the federal controlled substances act solely for actions consistent with this chapter, except as pursuant to a valid court order.”
MRTA, Art. 6, Section 127(1)
Section 127(2) – landlords may not deny housing based solely upon cannabis consumption for adult or medical purposes UNLESS:
(a) it causes or could cause landlord to violate federal laws and lose federal money or licensing related benefits – i.e., the problem of Section 8 and NYCHA housing, or
(b) there is a no smoking policy – if so, only medical patients may “smoke” cannabis flower in the building, not adult use.
Section 127(2-a) – no school may refuse to enroll a student or faculty member based solely on cannabis use, UNLESS
- – it threatens the loss of monetary, licensing, or other federal benefit which the school enjoys, or
- School adopts a prohibition policy based upon “sincere religious belief”.
MRTA, Article 6, Section 127, Pg. 67.
Section 127(3) – cannot discriminate against medical patients, especially organ transplant patients, because of cannabis use. Must view cannabis the same as any other medicine when evaluating the suitability of a transplant candidate.
Section 127(4) – “An employer shall adhere to policies regarding cannabis use in accordance with section two hundred one-d of the labor law.”
See also, NY Labor Law 201-d(1)(b) – “Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material”
NY Labor Law 201-d(1)(c) – ““Work hours” shall mean, for purposes of this section, all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.”
NY Labor Law 201-d(2) – “Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:
Sect. 127(2)(b) –“an individual's legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours, and off of the employer's premises and without use of the employer's equipment or other property”; or
Sect. 127(2)(c) – “an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property;”
See also, MRTA, Pg. 84 – “§ 9-b. Section 201-d of the labor law, as amended by chapter 778 of 34 the laws of 1992, is amended by adding a new subdivision 4-a, to read as follows: 4-a. Notwithstanding the provisions of subdivision three or four of this section, an employer shall not be in violation of this section where the employer takes action related to the use of cannabis based on the following:
(i) the employer's actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
(ii) the employee is impaired by the use of cannabis, meaning 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; or
(iii) 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.”
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