Dive Brief:

• New York Gov. Andrew Cuomo signed into law March 31 a bill legalizing recreational cannabis use by adults in the state and promoting licensing for marijuana producers, retailers and other industry stakeholders, according to a statement from the governor's office.
• The law specifies that it is illegal for employers to discharge, refuse to hire or otherwise discriminate against employees on the basis of cannabis use prior to the beginning or after the conclusion of their work hours, off the employer's premises and without use of the employer's equipment or property.
• However, employers do not violate the law when they take action when an employee is "impaired" by cannabis use, i.e. when the employee "manifests specific articulable symptoms," while working that decrease or lessen performance of duties or tasks or that interfere with the employer's obligation to provide a safe and healthy workplace.

Dive Insight:

New York joins 14 other states, as well as Washington, D.C., in legalizing marijuana for adult recreational use, according to the National Conference of State Legislatures. The cause for legalization has advanced rapidly in recent years, with voters in four states approving similar measures during the 2020 election cycle alone.

In addition to its provisions regarding actions taken when employees are found to be impaired by cannabis use, the law also contains a section spelling out its impact on certain employer policies regarding drug use.

"Nothing in this act is intended to limit the authority of any district, government agency or office or employers to enact and enforce policies pertaining to cannabis in the workplace; to allow driving under the influence of cannabis; to allow individuals to engage in conduct that endangers others; to allow smoking cannabis in any location where smoking tobacco is prohibited; or to require any individual to engage in any conduct that violates federal law or to exempt anyone from any requirement of federal law or pose any obstacle to the federal enforcement of federal law," the law's text reads.

It is a "significant piece of legislation" that follows a recently enacted New York City law banning employers from testing for marijuana or THC as a condition of employment, said Nathaniel Glasser, member of the firm at Epstein Becker Green. New York, he added, now joins New Jersey as one of only two states to prohibit employers from taking adverse actions against employees who engage in lawful recreational use as well as medicinal use of cannabis.

Although the new state law doesn't prohibit employers in the state based outside of New York City from including marijuana and cannabis on a drug testing panel, "they won't be able to screen out applicants testing positive," Glasser said, which could lead some to reconsider whether the two substances need to be included in screenings. Employers may also need to examine their policies to ensure compliance with the law's impairment standard.

Policy updates could be on the way for a number of employers. A 2019 survey by Paychex found more than one-third of respondents said they were not prepared to manage legal recreational marijuana use in the workplace.

Non-unionized employers in the state may want to look to unionized employers regarding the impairment standard, which has been applied by arbitrators in certain grievance arbitration hearings, Glasser said; "Employers in the unionized context have likely been operating under this set of regulations for some time now, and this law effectively will translate that to a non-unionized context." Unionized employers, he added, "should be looking closely" at their collective bargaining agreements to ensure compliance.