New York Has Legalized Marijuana. ... The law allows New Yorkers over the age of 21 to possess up to 3 ounces of cannabis for recreational use. People with certain marijuana-related convictions will have their records expunged immediately.
With Marijuana now being legal in NY, a new series of questions arise for businesses.
In this new law, Section 201-d generally prohibits employers from discriminating against, terminating and refusing to hire, employ or license individuals because of their legal use of consumable products or participation in legal recreational activities outside of work.
With this new law, NY State will treat Marijuana as a legal substance, however, jobs that are federally regulated (such as Transportation) will still have to follow federal guidelines. Pre-employment drug testing an area of concern? Testing for it means that a NY employer will have to choose to either violate the state law by rejecting the candidate or the federal law by hiring the candidate. So it may require you to re-think testing, unless the job is federally regulated.
No matter what type of position, you don't have to allow employees freedom to use or be impaired during the workday. However, you do have to allow employees to use it in their free time.
New York State's medical and recreational marijuana laws: employers may not discriminate against or discipline an applicant or employee based on their lawful off-duty consumption or use of cannabis off of the employer’s premises.
If you are in the higher education sector, U.S. federal law states that marijuana is illegal. This means universities still have to follow the "Drug-Free Schools and Communities Act", which does require you have a policy that prohibits the possession of marijuana, and in order to continue to receive federal funds you have to continue to manage to that law and prohibit its use on campus in all forms of distribution as well as possession,”
Your medical or recreational users do not have any special rights or privileges at work that they didn't have before. You do not have to allow use during work hours, nor do you have to allow altered mental states from employees who use marijuana prior to their shift. The medical marijuana law states that it allows employers to prohibit on-duty impairment.
Unfortunately, due to a complexity of state and federal laws and varying court rulings on this subject, there is no “one-size-fits-all” solution; nor is there a standard workplace drug policy or testing procedure that will guarantee compliance but here are a few key take-a-ways:
- You can still drug test, and an applicant can still be required to take a drug test before a conditional offer of employment has been made.
- Testing for illegal drugs is still acceptable, but remember THC is not illegal in NYS. It is not recommended you test for THC unless you are required to do so (i.e., DOT, Drug Free Workplace Requirements)
- If the results of a drug test indicate the presence of lawfully prescribed or legal drugs, that information must be kept confidential, as with all medical records.
- Your employees cannot come to work impaired.
- Your employees can’t become impaired during work hours (even lunch and break times)
- It is important to continue to document and discipline based on the employee's job performance. Slow or distracted behavior, inappropriate laughter, or inability to focus on the task at hand are all reasons an employee should be talked to, regardless of whether they are stone-cold sober or smoked a whole joint at lunch.
- Train your Supervisory Team on how to ask questions when their is a reasonable suspicion that your employee is impaired at work
- Update your handbook and code of conduct! No employee may:
- Possess marijuana at work
- Be under the influence of marijuana while working
- Use marijuana while working
The bottom line is Your employees can’t be impaired while working!
We will continue to provide information as it becomes available. In the meantime, if you have questions or would like to discuss this developing topic, please contact us.