This article discusses a law that may affect New York workers, not workers in other states. By the time you read it, it may be out of date. All workers should consult with reputable workplace attorneys in their jurisdictions to understand how the law may affect individual workplace rights.

Introduction:

The New York Marijuana Regulation and Taxation Act (MRTA), in addition to decriminalizing recreational use of cannabis, theoretically created some workplace protections for New York workers who engage in legal off-duty use. But last year’s Fourth Department decision,  Matter of Moran-Ruiz v. Ontario County, 218 A.D.3d 1341 (4th Dept. 2023), has called into question many of those protections, and it’s still illegal under federal law. The only intelligent way to understand how the MRTA affects you is to speak with a reputable New York workplace rights attorney. But here are some things to keep in mind.

1. Off-Duty Use of Marijuana:

The MRTA legalizes the recreational off-duty use of marijuana for individuals aged 21 and older. It is important to note that while the act permits the off-duty use of marijuana, it does not grant employees an absolute right to use or be under the influence of marijuana during working hours. Employers still have the right to enforce workplace policies and existing Collective Bargaining Agreement provisions regarding drug use, particularly if it could impair job performance or jeopardize safety.

2. Drug Testing and Employment:

First the bad news: workers in safety-sensitive positions or positions where drug testing is mandated by federal regulations are still subject to testing, including pre-employment and random drug testing.

Now the slightly better news: For existing employees, drug testing can only be conducted if there is reasonable suspicion of on-duty use, impairment, or violation of workplace policies. What is reasonable suspicion? Well… the statute says that reasonable suspicion does not exist unless the employee “manifests specific articulable symptoms of impairment.” Of course it doesn’t define what a “specific articulable symptom of impairment” might be. This guidance from the New York State Department of Labor indicates that just smelling like marijuana is not a specific articulable symptom. Glassy eyes, lack of focus, and lack of coordination have all been posited as possible articulable symptoms. But those are also symptoms of medical conditions that may trigger an obligation on the employer’s part to offer reasonable accommodations. So, watch this space.

The reality is that, if an employer reasonably suspects on-duty marijuana use or impairment, they may request an employee to undergo a drug test, and the drug test will be used as evidence that the employee may have been using marijuana while on duty. And because most employment is at-will, the employer doesn’t have to prove anything. So unless you have a union, you might be out of luck, even if you weren’t high at work.

3. Implications of Matter of Moran-Ruiz v. Ontario County:

This is where it gets weird. The MRTA created a whole new section in the New York lawful off-duty activities statute, seemingly creating robust protections for workers who engage in lawful off-duty use of cannabis.  But Matter of Moran-Ruiz significantly dials back those protections, concluding that the new section only gives employers additional excuses to discriminate on top of all the reasons that employers can already legally discriminate. (Not even kidding. Check out the language at the end of the decision.) So far, Moran-Ruiz stands. But…watch this space.

4. Conclusion:

Theoretically, the MRTA allows for off-duty cannabis use, but employers retain the right to implement policies regarding drug usage during working hours. And the decisional law so far has not been promising. It is crucial for employees to understand the limitations of the statutory protections. Staying informed and seeking legal advice is the best way to protect your workplace rights. Always consult a legal professional for personalized advice.