New York state of mind – What legalized weed means for employers

Excerpted from a Forbes article by Alonzo Martinez

After years of debating and advancing marijuana laws, beginning with legalizing the medical use of cannabis in 2014 to decriminalize minor marijuana-related offenses in 2019, lawmakers in New York have gone all-in legalizing the recreational use of marijuana by adults. On March 31, 2021, New York Governor Andrew Cuomo signed into law the New York State Cannabis/Marijuana Regulation & Taxation Act, reducing barriers to employment for users and encouraging employers to rethink their positions on marijuana.

Getting Started
The Act creates an Office of Cannabis Management (OCM), an independent arm of the New York State Liquor Authority’s Division of Alcohol Beverage Control. The OCM will be responsible for operationalizing and regulating marijuana within the state and will assume duties over the state’s existing medical marijuana program. The OCM is expected to establish standards for cultivation, create licensing programs for distributors, processors, and retailers of recreational marijuana, adopt advertising and marketing rules and implement a social equity program that will assist individuals disproportionally impacted by cannabis enforcement.

While legalization is effective immediately, you won’t find shops opening in your neighborhood until the OCM has implemented the rules necessary to regulate marijuana. Regardless, individuals in New York may currently possess, purchase, share and consume up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis. While it may take months or years for retail sales to start, employers should prepare to comply with the legislation.

Employer Impact
Thankfully for employers, the New York State Cannabis/Marijuana Regulation & Taxation Act does not diminish an employer’s ability to maintain a zero-tolerance drug-free workplace. Employers are not required to permit or otherwise accommodate the use, possession, sale, or transfer of cannabis in the workplace and can prohibit employees from being impaired during work hours.

Notably, for users of marijuana, the Act amends Labor Law Section 201-d, protecting workers’ rights to engage in the use of cannabis outside of work. Specifically, the Act requires employers to not discriminate against a worker’s use of cannabis when off-duty, outside of the employer’s facility, and when not using the employer’s equipment or other property. As it relates to an employer’s pre-employment drug screening program, most New York employers may not refuse to hire a candidate based on their legal use of marijuana.

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