With an increasing number of states legalizing the use of recreational marijuana, employment laws are being enacted to address marijuana possession and use.1 One such state is New York. The New York Department of Labor (DOL) has issued new guidance on adult cannabis use and the workplace. The guidance discusses changes to New York Labor Law (NYLL), Section 201-D, addressing topics such as when employers can and cannot test for marijuana, take adverse actions based on cannabis use, and make employment decisions based on positive drug tests. The DOL’s position on the Marijuana Regulation and Taxation Act (MRTA) may surprise some covered employers — which include all public and private employers in New York state, regardless of size, industry, or occupation.
Now that recreational cannabis is legal in New York, the MRTA amended Section 201-D of the Labor Law to clarify that cannabis is now a legal consumable product when used in accordance with New York state law. As such, employers cannot discriminate against employees over the age of 21 based on their use of marijuana provided it takes place outside the workplace, outside working hours, and when not using the employer’s equipment or property.
What does this mean with regard to drug testing, disciplinary actions, and other employment matters? Let’s start with what employers can still do. First, employers may still prohibit (1) the use of cannabis at the workplace, including during meal and rest breaks, (2) the use of cannabis...
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