With the passage of the New York Marijuana Regulation and Taxation Act (MRTA), the state’s off-duty conduct law will now explicitly protect workers’ use of cannabis products during off-duty hours. This change in the law may lead to challenges for employers to maintain compliance.

First, it is necessary to understand the background of the issue. New York has long maintained protections for workers’ off-duty conduct under New York Labor Law § 201-d. This law forbids employers from discriminating against employees for acts such as consuming alcohol, legal recreational activities, or participating in political activities. Under MRTA, the law now explicitly protects the use of cannabis.

These protections, though relatively broad concerning employees’ use of cannabis outside of the workplace, have exceptions. One exception is the off-duty conduct law, which states employers may terminate and refuse to hire individuals. Other examples include, but are not limited to, the following:

• Where an employee’s activities would create a material conflict of interest with the employer’s business interest;
• Where the employer legitimately believes it is required to take action by a statute, ordinance, regulation, or other government mandates;
• Where the employer believes a workplace policy, collective bargaining agreement, professional contract, or alcohol or substance abuse prevention program permits the action.

MRTA also adds a new set of provisions to these exceptions, which allow employers to act when related to cannabis usage. These are when:

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 workplace, free from recognized hazards, as required by state and federal occupational safety and health law; or
3. 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.”

The attorney general will typically enforce this law, but employees can take private action to achieve equitable damages and relief.

What Steps Should New York Employers Take Next?

The first step for most employers is ensuring company policies and handbooks remove any explicit prohibitions on the use of cannabis. Next, consider implementing policies regarding the use of cannabis at work if none are in place. These policies inform employees what steps will take place if employees appear to be under the influence. For example, employers may maintain a drug-free workplace and take disciplinary action should an employee demonstrate symptoms of impairment. Finally, train supervisors to recognize these symptoms and act when approaching employees under the influence.

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