June 2021

State Updates

 

New York adds employment protections for recreational marijuana users

05/06/21

Author: ADP Admin/Friday, April 30, 2021/Categories: Compliance Corner , State Compliance Update, New York

New York Governor Andrew Cuomo has signed Senate Bill S854A also known as the Marihuana Regulation and Taxation Act (the Act) into law. The Act, which is effective immediately, legalizes recreational marijuana use and establishes employment protections for recreational marijuana users.

Senate Bill S854A:

The Act generally prohibits employers from taking adverse action against employees or applicants, including terminating, discriminating against, or refusing to hire or employ an individual who legally uses or possesses marijuana products during non-work hours or while they are outside the workplace.

Workplace Use Prohibited:

Employers may prohibit employees from being impaired by or using or possessing marijuana during work hours, on company premises, or while using company equipment. Additionally, an employer may take adverse action against an employee for their marijuana use if:

  • They're impaired on the job and the employer can articulate the specific signs impacting their job performance or interferes with an employer's obligation to provide a safe and healthy workplace;
  • They drive while impaired by marijuana; or
  • Required by state or federal law, regulation or mandate; or complying with the Act would require an employer to violate federal law or would result in the loss of a federal contract or federal funding.

Cannabis Testing:

Employers are prohibited from taking adverse action against an applicant or employee on the sole basis of testing positive for cannabis use. Generally, employers may only take adverse action based on a positive test result if that individual displayed objective signs of impairment prior to the test. Additionally, the Act does not preempt existing federal laws or regulations that mandate testing and prohibit employees from using marijuana.

Workers' Compensation:

The Act provides employees who use medical cannabis the same rights, procedures, and protections that are given to injured workers under the workers' compensation law, in cases where workers who are injured are prescribed medication that may prohibit, restrict, or require the modification of job duties.

Compliance Recommendations:

New York employers should review their drug and alcohol testing policies, forms, practices, and supervisor training to ensure compliance with Senate Bill S854A. Regulations implementing the Act are also expected. We will provide updates as further guidance is released. Please contact your dedicated service professional with any questions.

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