New York: New Recreational Marijuana Protections for Employees

Effective immediately, the New York Marihuana [sic] Regulation and Taxation Act legalized the recreational use of marijuana in the state. Employers are prohibited from discriminating against employees based on the legal use or possession of marijuana while off duty and outside the workplace, subject to limited exceptions.

However, employers can still prohibit marijuana use or possession during work hours, while on work premises, and while using an employer’s equipment or property. This includes being impaired while working or driving for work. Impairment means when “the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law.”

These new protections essentially prohibit employers from taking adverse action simply based on a positive marijuana drug screen without separate objective indication that an employee was actually impaired while working. These prohibitions do not apply where drug testing is required by law, or would cause an employer to violate federal law or lose federal contracts or funding.

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