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New York Imposes Employment Protections for Cannabis Users

November 2, 2021

Earlier this year, New York legalized the recreational use of cannabis for adults over the age of 21.  The Marijuana Regulation and Taxation Act further amended New York State Labor Law Section 201-d to prohibit employers from refusing to hire, employ, or license; to discharge from employment; or otherwise discriminate against an employee because he or she uses cannabis lawfully outside of work hours, off the employer’s premises and without use of the employer’s equipment or other property.  

Recently, the New York State Department of Labor (NYSDOL) issued guidance regarding this amendment, available here.  The guidance provides that employers cannot take employment action or test for cannabis unless it falls under one of the three exceptions of Section 201-d(4-a):   

  1. the employer's actions were required by state or federal statute,
    regulation, ordinance, or other state or federal governmental mandate; 
  2. 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
  3. the employer's actions would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding. 

The NYSDOL provides further guidance on the meaning of “articulable symptom of impairment” found in the second exception above.  The NYSDOL states there is no dispositive or complete list of symptoms or impairment, but rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened.  For example, the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.  The NYSDOL further provides that the smell of cannabis, on its own, is not an articulable symptom of impairment. 

If you have questions about this or any other workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.

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