New York Legalizes Recreational Cannabis

On March 31, 2021, Governor Andrew Cuomo of New York signed into law S00854, also known as the “Marihuana Regulation and Taxation Act” (the Act), legalizing adult-use cannabis in the state. The Act is largely effective immediately. Adults age 21 and older are now permitted to possess limited amounts of cannabis or concentrate, and smoking cannabis is permitted wherever smoking tobacco is allowed.

How Are Employers Impacted?

The Act legalizes cannabis for recreational use before or after work hours and off the employer’s premises. Additionally, an employer or employment agency cannot refuse to hire, employ, license, discharge, or otherwise discriminate against an individual in terms of compensation, promotion, or conditions of employment because of cannabis use when done in accordance with state laws.

Cannabis use remains prohibited in the workplace, and employers may still enact and enforce policies pertaining to cannabis in the workplace. Additionally, employers are not required to exempt anyone from any requirement of federal law or regulations.

Companies with employees in New York need to decide under what circumstances they intend to test for marijuana and when they will not. It is strongly recommended to consult with your corporate legal counsel to confirm that your panel meets these testing requirements and the new law.

As described by the legislation, employers can now take action pertaining to cannabis use ONLY under the following circumstances:

• If the employer’s actions are required by state or federal law, statute, regulation, ordinance, or mandate.
• If an employee is “impaired” by cannabis use.
• To act based on impairment, the employee must manifest specific, articulable symptoms while working that decrease or lessen their performance of duties or tasks related to their position.
• Alternatively, an employer can act when said articulable symptoms interfere with the employer's obligation to provide a safe and healthy workplace free from recognized hazards as required by state and federal law.
• If not taking action would require the employer to commit an act that would cause them to violate federal law or result in loss of a federal contract or funding

Recommended Action Items

Review the “Marihuana Regulation and Taxation Act” and familiarize yourself with New York impairment standards.

Immediately review your corporate testing program and drug testing panel with your legal counsel to determine if changes are needed.

Note: This communication does not apply to federally mandated programs (e.g., DOT)

Review which states have passed laws relating to medical marijuana, decriminalization, or legalization: https://disa.com/map-of-marijuana-legality-by-state

To modify your corporate testing panel:

Update your corporate drug testing policy (or policies) to include the conditions that apply to your employees.

Communicate your requested changes to your TPA.

DISA can help! Get answers directly from DISA’s subject matter experts with ‘Ask DISA’

Visit www.askdisa.com to ask your questions today.

Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.