Cannabis Protections – NY and NJ Take Different Approaches on Employer Obligations

By Alexandra Lapes, Esq.

On March 31, 2021, New York State joined the rising number of states to fully legalize cannabis for adult users by passing the Marijuana Regulation and Taxation Act (“MRTA”).  Enacted just a month after New Jersey’s cannabis law passed, see our previous blog article here, the MRTA clarifies and establishes workplace standards related to cannabis including the rights and protections of both employers and employees, effective immediately.  The MRTA also amends New York Labor Law to protect an employee from discrimination based on the employee’s legal use of cannabis in accordance with state law, including an employee’s use of cannabis prior to the beginning or after the employee’s work hours, off the employer’s premises, and without the use of the employer’s equipment or property.

Notably, the MRTA explicitly carves out protections for medical cannabis users and expands the state’s medical cannabis program to allow clinicians to recommend medical cannabis for any condition (previously only a limited number of diseases qualified patients for medical cannabis use).  As such, under New York’s Compassionate Care Act, employees who are “Certified Patients,” and prescribed medical cannabis are deemed to have a disability under the New York State Human Rights Law and are entitled to reasonable accommodations based on their disability. In addition, the MRTA requires medical cannabis users be provided the same rights, procedures, and protections available and applicable to injured workers under the worker’s compensation law, when such injured workers are prescribed medications that may prohibit, restrict, or require the modification of the performance of their job duties.

Nevertheless, employers are not required to allow an employee to use cannabis while at work for any reason including if prescribed by a doctor, and employers may take action against any employee related to the use of cannabis if:

  1. the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
  2. the employee is impaired by the use of cannabis while working; or
  3. the employer’s actions would cause the employer to be in violation of federal law, or would results in the loss of a federal contract or federal funding.

“Impaired by the use of cannabis” means the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s job performance or such specific articulable symptoms interfere with an employer’s obligation to provide a healthy and safe workplace, as required by state and federal law.  The MRTA does not define “specific articulable symptoms”.

Consensus on Prohibiting Work While Impaired; Divergence in the Details of Drug Testing

The New York and New Jersey cannabis laws both permit employers to enact and enforce policies pertaining to cannabis in the workplace, and employers may prohibit the use, possession, or being under the influence of cannabis while in the workplace or during work hours.  Employees’ off-duty use of cannabis in accordance with each state law creates a protected class for employees against adverse action based on lawful consumption.  Furthermore, employers in both states are permitted to take adverse action against an employee who is determined to be impaired while engaged in work responsibilities or during work hours. However, employers may not make any hiring decisions based solely upon a positive drug test result.

Under New Jersey’s cannabis law, employers who conduct drug tests per the law’s permissible reasons may then use the results of that drug test when determining the appropriate employment action concerning the employee, provided the drug test satisfies two prescribed requirements: it is conducted with scientifically reliable objective testing methods and procedures (i.e. testing blood, urine, or saliva); and a physical evaluation is conducted by a “Workplace Impairment Recognition Expert” (WIRE).

New York’s cannabis law has no similar provision or requirements and is ostensibly silent on drug testing requirements or procedures in the workplace.  While New York City employers have been explicitly banned from conducting pre-employment drug tests for cannabis since May 2020, it is unclear for employers in other parts of New York State, under what circumstances an employer may use pre-employment drug tests (unless mandated by federal law), since a positive test result cannot serve as the basis for any hiring decision.

Key Takeaways

Employers should review and update their policies and procedures to ensure compliance with their respective state cannabis law and stay alert for further guidance on interpreting and applying these laws in the workplace.  Multi-state employers should be mindful of the key jurisdictional differences that impose greater requirements on New Jersey employers when conducting drug tests for cannabis.

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