Smoking a Storm: employee cannabis use in New York


Smoking a Storm: employee cannabis use in New York

Navigating the Legal Landscape of Employee Cannabis Use in New York

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New York’s cannabis laws have undergone significant changes in recent years. With the implementation of the Marihuana Regulation & Taxation Act (MRTA) in 2021, the state not only legalized adult-use cannabis but also expanded its medical marijuana program. As a result, employers in New York must navigate a complex legal landscape when it comes to managing their employees’ cannabis use. This article explores the various protections and limitations provided by New York law to both recreational and medical cannabis users in the workplace.

New York Law and Cannabis Use

The Marihuana Regulation & Taxation Act

The MRTA, signed into law in March 2021, brought about significant changes to New York’s cannabis regulations. While the focus of the MRTA was primarily on the legalization of adult-use cannabis, it also had implications for the state’s medical marijuana law. The MRTA expanded access to the medical marijuana program and introduced new provisions to protect employees.

Expansion of New York’s Medical Marijuana Law

Prior to the MRTA, New York’s medical marijuana program was governed by the Compassionate Care Act, which had been in place since 2014. The MRTA amended New York Labor Law 201-d to provide additional protections for employees using medical marijuana. These protections aim to balance the rights of employees with the concerns of employers regarding workplace safety and productivity.

Protections for Off-Duty Cannabis Use

Private Use and Employer Limitations

Under New York Labor Law 201-d, most private sector employees have the right to engage in recreational cannabis use during their off-duty hours. This protection applies as long as the cannabis use occurs off the employer’s premises and does not involve the use of the employer’s equipment or property. However, there are exceptions and limitations to this general rule.

Some exceptions include situations where private cannabis use creates a conflict of interest related to the employer’s trade secrets or proprietary information. Additionally, certain public employees and employees of New York State agencies may be subject to different limitations based on collective bargaining agreements or ethics-related provisions.

Safe Harbor for Employers

New York Labor Law 201-d provides a safe harbor for employers who take actions based on their belief that such actions are required by law, workplace policies, or collective bargaining agreements. If an employer reasonably believes that an employee’s cannabis use violates these provisions, they may take appropriate actions such as disciplinary measures.

Employers may also differentiate health, disability, or life insurance coverage based on employees’ recreational activities or use of consumable products. However, the employer must justify the differential premium rates by demonstrating a differential cost and provide employees with a statement explaining the rates.

Human Rights Law Protections

    Restriction on Pre-Employment Marijuana Testing in New York City

    The New York City Human Rights Law (NYCHRL) prohibits most employers from requiring job applicants to undergo cannabis testing, regardless of whether the use is medical or recreational. This restriction aims to prevent discrimination against individuals who engage in lawful cannabis use outside of work.

    There are exceptions to this restriction for certain positions that involve safety-sensitive roles, law enforcement, public construction projects, commercial driving, or the supervision of vulnerable individuals. Mandatory drug testing may also be required under federal or state law or as per collective bargaining agreements.

    Medical Uses of Cannabis under NYSHRL and NYCHRL

    New York courts have grappled with the issue of medically prescribed cannabis use as a requested accommodation for disabilities. The New York State Human Rights Law (NYSHRL) considers medical marijuana use as a protected disability. However, the NYCHRL does not explicitly provide the same level of protection for medical cannabis use.

    In cases like Gordon v. Consol. Edison Inc., the court recognized that the NYCHRL must be interpreted liberally to provide maximum protection for medical marijuana use. This interpretation requires employers to engage in a cooperative dialogue with employees regarding their use of medically prescribed marijuana before taking any adverse employment actions.

    However, other court cases, such as Scholl v. Compass Group USA, Inc., have clarified that the NYCHRL does not recognize marijuana use as a protected disability. The court emphasized that the law’s definition of disability explicitly excludes individuals currently engaging in the illegal use of drugs when employers base their actions on such use.

    Employers’ Powers to Discipline Employees

    It’s important to note that, despite the protected use of cannabis, employers still have the authority to discipline employees for misconduct in the workplace. In cases like Apholz v. City of Amsterdam, the court highlighted that the NYSHRL does not immunize disabled employees from disciplinary actions or require employers to retroactively excuse misconduct as an accommodation.


    In navigating New York’s evolving cannabis landscape, employers must consider the rights and protections afforded to employees regarding both recreational and medical cannabis use. While employees generally have the right to engage in private cannabis use, employers have certain limitations and exceptions they can invoke based on their trade secrets, proprietary information, or other business interests. Additionally, New York City imposes restrictions on pre-employment cannabis testing, and there are variations in the recognition of medical cannabis use as a protected disability under different laws. Employers should exercise caution and ensure compliance with the applicable legal provisions while respecting the rights of their employees.