NY’s Off-Duty Conduct Law Now Includes Cannabis Use

When New York legalized the recreational use of cannabis for adults 21 and over, it also amended the state’s off-duty conduct law…

When New York legalized the recreational use of cannabis for adults 21 and over, it also amended the state’s off-duty conduct law. As amended, New York Labor Law § 201-d generally prevents employers from taking adverse actions in response to an employee’s use of cannabis outside the workplace.

New York Off-Duty Conduct Law

New York’s off-duty conduct law prohibits discrimination against employees based on their lawful off-duty conduct and applies to all employers with employees in New York. Covered conduct includes political activities, the legal use of consumable products, such as alcohol and tobacco, and other legal recreational activities outside work hours and off the employer’s premises. “Work hours” is defined as “all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.”

New York Labor Law § 201-d contains several exceptions. For instance, it does not protect activity that creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest. Additionally, an employer does not violate the law when it takes action based on the belief either that:  (i) the employer’s actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer’s actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.

Employee Protections Under the MRTA

On March 31, 2021, Gov. Andrew Cuomo legalized recreational cannabis by signing the New York Marihuana Regulation and Taxation Act (MRTA) into law. The MRTA includes several provisions that address legal cannabis use by employees.

With regard to off-duty cannabis use, New York Labor Law § 201-d now makes it unlawful for an employer to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual because of:

• An individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property; and
• An individual’s legal recreational activities, including cannabis in accordance with state law, outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.

The MRTA also adds new cannabis-related exceptions to the off-duty law. Employers do not violate the law when taking an action related to the use of cannabis in the following circumstances:

• The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
• The employee is impaired by the use of cannabis, meaning 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 workplace, free from recognized hazards, as required by state and federal occupational safety and health law; and
• The employer’s actions would require the employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Key Takeaway

Because the amendments took effect immediately, employers should review their employee policies and procedures, including employee handbooks, to determine what changes may be necessary. It is important to note that while the MRTA prohibits employers for taking an adverse action in response to off-duty recreational cannabis use, it does not prohibit them from maintaining a drug-free workplace. Accordingly, employers may still prohibit workers from using, consuming, or possessing cannabis during work hours or on the business premises. As noted above, the new exceptions related to cannabis also allow employers to discipline employees for on-the-job impairment. 

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.

This article is a part of a series pertaining to cannabis legalization in New Jersey and the United States at large. Prior articles in this series are below:

• Appellate Division Relies on Hager to Uphold Reimbursement of Medical Cannabis
• US House Passes Cannabis Banking Reform Legislation
• Ninth Circuit Reject Cannabis Company’s 280E Tax Arguments

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.