New York Employment Update: Legalization of Recreational Marijuana

New York Employment Update: Legalization of Recreational Marijuana

  • On March 31, 2021, New York legalized the recreational use of marijuana for individuals over the age of 21
  • The Marijuana Regulation and Taxation Act (MRTA) generally legalized cultivation, distribution, use, and possession of recreational marijuana in New York State
  • Important for New York employers, MRTA amends Labor Law Section 201-d, which protects employees’ right to engage in certain recreational activities outside of work
  • 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 hours
  • As amended by MRTA, Section 201-d now provides that recreational use or consumption of marijuana outside of work hours and off employer’s premises constitutes lawful recreational activity
  • Section 201-d defines work hours as all time an employee is engaged in work or permitted or expected to be engaged in work, including paid and unpaid breaks and meal periods
    • The amendments to Section 201-d limit employers’ ability to discipline employees for their lawful use of recreational marijuana during non-working hours, subject to several exceptions:
    • MRTA states that employers will not violate Section 201-d where their actions are “required” by state or federal statute, regulation, ordinance or other mandate. Marijuana is still illegal at the federal level, so this is an important exception for employers regulated under federal law
    • MRTA also states that employers retain their ability to take actions where an employee is “impaired by the use of cannabis” while working
    • MRTA additionally allows employers to take actions against employees for their use of recreational marijuana where not taking action would result in the employer’s violation of federal law, or loss of a federal contract or federal funding

The Attorneys in the Labor and Employment Practice Group at Levene Gouldin & Thompson, LLP are available to provide advice and counsel concerning matters related to this new law.

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