Last March, Governor Andrew Cuomo legalized the use of marijuana for adults 21 years or older, thus making New York the 15th state to open its doors to the adult-use marijuana industry. The Marijuana Regulation and Taxation Act (“MRTA”) sets forth a framework for those not only interested in consuming marijuana, but also for producers, distributors, and retailers who are eager to obtain a state license. The anticipation felt by many to enter the industry is understandable given the historic projection of the emerging market estimated to reach approximately $4.2 billion in the State of New York alone.
While MRTA is effective immediately, New Yorkers will not be able to enjoy purchasing marijuana products at a local dispensary for quite some time. Likewise, medical producers, distributors, and retailers looking to expand could wait over a year to get a license to sell to non-medical consumers. This wait is typical of any new law, especially one dramatically changing the regulation of a once heavily criminalized substance. Now, with almost 20 states fully legalizing the use of marijuana (and several others considering it) there is a change surrounding the perception of marijuana. As one of the newest states embracing this change, many employers are wondering whether their existing business practices may infringe on New Yorkers’ rights to consume marijuana.
Current New York Labor Laws already protect employees from facing scrutiny for engaging in reactional activities, such as using alcohol and tobacco off-duty. MRTA expands these protections to include marijuana as a lawful outside work activity. Employers now may not discriminate or punish an employee because of marijuana use if the use occurs outside of the employee’s work shift and off of the employer’s property and premises.
MRTA does not change the fact that employees are not permitted to report to their place of employment while under the influence of marijuana. Employers are still permitted to enforce their own unique policies regarding the use of marijuana in the workplace. Specifically, employers with federal contracts may still take necessary and required actions under federal or state law to ensure a safe work environment. Private employers may also take action against an employee who is found to be under the influence of marijuana if such impairment decreases the employee’s overall performance or interferes with the employer’s duty to provide a safe and healthy work environment. In this context, “impaired” means that the employee manifests articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks. Since this standard may be difficult for employers to spot, they may need to consider how and when to change their company’s substance use policies.
Ultimately, the rules governing marijuana use in the workplace are rapidly changing across the United States. New York employers will need to pay attention to the developing regulation and be open to revising long-established practices to comply with MRTA and the changing times.