On March 31, 2021, New York State enacted the Marijuana Regulation & Taxation Act (MRTA) which legalizes adult-use cannabis in New York. Recently, the New York State Department of Labor issued guidance to address common situations and questions relating to the legalization of adult-use cannabis and its effects on the workplace.

MRTA prohibits employers from terminating; refusing to hire, employ or license; or otherwise discriminating against an employee based on their lawful use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property. Under MRTA, an employer may not require employees to promise or agree not to use cannabis as a condition of hire or continued employment.

However, MRTA also provides that an employer may take employment action or prohibit employee conduct where the employer (i) is required to do so under federal or state law; (ii) would otherwise be in violation of federal law; or (iii) would otherwise lose a federal contract or federal funding.

In addition, an employer may take action against an employee if you are impaired by cannabis at work and while working, show specific “symptoms of cannabis impairment” that (i) decrease or lessen your job performance; or (ii) interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws. Signs of cannabis use that do not indicate impairment on their own, such as a noticeable odor of cannabis, cannot be used to justify employer action.

As for drug testing, an employer may not test employees for cannabis unless an exception applies, such as drug testing is required by law in the particular industry or required by federal law.

In general, although an employer may not prohibit cannabis use outside of the workplace and outside of work hours, an employer is permitted to prohibit cannabis use during “work hours,” meaning all time, including paid/unpaid breaks, meal periods, and on-call time, even where an employee leaves the worksite. An employer may also prohibit employees from bringing cannabis onto the employer’s property, including leased/rented space, company vehicles, and areas used by employees (e.g., lockers), and may prohibit cannabis use on employer property beyond regular business hours or work shifts.

The MRTA applies to all public and private employees employed within the State of New York regardless of immigration or citizenship status, but does not apply to independent contractors, volunteers, or employees under 21.