New York Governor Andrew Cuomo signed a law legalizing recreational marijuana on March 31, 2021. The legalized use of marijuana is effective immediately, although retail marijuana sales are unlikely to begin until mid-2022. This change may have an immediate impact on a New York employer’s ability to take negative action against applicants and employees based on recreational marijuana use.
The Marihuana Regulation and Taxation Act (MRTA) legalizes and regulates cannabis use and possession for adults aged 21 and over. The MRTA creates a new cannabis law and consolidates the laws affecting the recreational use of cannabis, medical marijuana and the adult cannabinoid hemp program. These programs are monitored and regulated by a newly created Cannabis Control Board and the Office of Cannabis Management.
Effective immediately, adults 21 and older can own up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis and use cannabis, unless prohibited by law. The law does not allow driving under the influence of cannabis or smoking cannabis in places where tobacco smoking is prohibited. Nor is it necessary for a person to engage in, among other things, conduct that violates federal law.
Amendment of the Law on Legal Activities
The most important provisions for employers are the amendments to Section 201-d of the New York Labor Code. MRTA requires an employer to adhere to guidelines regarding cannabis under Section 201-d of the Labor Code. This means that New York employers must not refuse to hire, employ, fire, or otherwise discriminate against anyone who legally uses cannabis off-duty and off-business, and who does not use the employer’s equipment or other property . However, Section 201-d is amended to ensure that an employer does not violate this Act if the employer takes action regarding cannabis use based on the following:
- The employer’s actions were required by state or federal statute, ordinance, ordinance, or other state or federal government mandate.
- The employee is affected by the use of cannabis. This means that the employee exhibits certain articulable symptoms during work that decrease or decrease the employee’s performance in relation to the tasks or tasks of the employee’s work position, or such specific articulable symptoms during work that are related to the employee’s performance Decrease or decrease to the employee’s duties or responsibilities, work position or such specific articulate symptoms interfere with the employer’s obligation to provide a safe and healthy workplace that is free from recognized hazards, as required by state and federal labor protection laws. or
- The employer’s actions would require that employer to commit an act that results in the employer violating federal law or resulting in the loss of a federal contract or federal funding.
Changes to Medical Marijuana Law
Oversight of the state’s medical marijuana program will be shifted from the Department of Health to the Bureau of Cannabis Management. Any disease is eligible for medical marijuana use as recommended by a doctor and the types of products that can be used are expanding and marijuana can be sold to medicinal users in leaf / flower form. Medical marijuana users continue to have a “disability” as defined by New York Human Rights Act.
MRTA also provides that employees who use medical cannabis must be granted the same rights, procedures, and safeguards that injured workers are available under the Workers’ Compensation Act and apply when those injured workers are prescribed medication that may be prohibited, restricted, or required are changing the performance of their duties.
Driving under the influence
MRTA is instructing state police to increase the number of trained and certified drug detection experts and provide greater drug detection awareness and advanced roadside driving disorder enforcement training.
The Ministry of Health is instructed to conduct research to evaluate methods and technologies for the detection of driving disorders caused by cannabis and to submit its results to the legislature on or before December 31, 2022. Thereafter, the Department of Health can enact rules and regulations for approval and certify a test to determine the current exposure to cannabis by vehicle operators.
Practical considerations
New York employers should review their drug and alcohol testing guidelines to determine if and under what circumstances to continue testing for marijuana. Regulators should be trained to make reasonable suspicions so that disciplinary action based on positive marijuana tests with reasonable suspicion is justifiable.
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