New York State Legalizes Recreational Use of Marijuana Away from Workplace

Drug Testing

Written By ESR News Blog Editor Thomas Ahearn

On March 31, 2021, New York Governor Andrew Cuomo signed into law the Marijuana Regulation and Taxation Act (MRTA) which, effective immediately, legalized the recreational use of marijuana products for adults in the state aged 21 or older, according to a news release on the website of Governor Cuomo.

The MRTA (Senate Bill S854A) also prohibits employers from discriminating against workers based on the legal use or possession of marijuana products while off duty and outside the workplace, with few exceptions, and provides a private right of action for employees claiming to be harmed by such alleged discrimination.

“This is a historic day in New York – one that rights the wrongs of the past by putting an end to harsh prison sentences, embraces an industry that will grow the Empire State’s economy, and prioritizes marginalized communities so those that have suffered the most will be the first to reap the benefits.” Governor Cuomo said.

However, the MRTA permits employers to prohibit marijuana use or possession during work hours, at the employer’s workplace, and while using an employer’s equipment or other property. Employers may also take adverse action against employees who engage in off-duty marijuana use under certain circumstances.

In addition, an employer may prohibit and take adverse action against marijuana users under the MRTA based on an employee’s workplace “impairment” shown by specific symptoms. The Act does not excuse individuals from driving while impaired by marijuana under New York Driving Under the Influence (DUI) laws.

While the MRTA does not prohibit drug testing or preempt federal law or regulation prohibiting the use of marijuana, employers cannot reject an applicant or take adverse action against an employee based solely on marijuana use away from the workplace or testing positive for marijuana on a work-related drug test.

The MRTA establishes an Office of Cannabis Management to oversee and regulate the new adult-use cannabis program. While retail sales of marijuana are not expected to begin until 2022, the legalized use of marijuana became effective immediately. A copy of the MRTA is at www.nysenate.gov/legislation/bills/2021/S854.

The rate of urine drug testing positivity in the U.S. workforce increased to a sixteen-year high in 2019, climbing to 4.5 percent, the highest level since 2003, according to an analysis by Quest Diagnostics. Marijuana positivity in the U.S. workforce increased nearly 11 percent in urine testing from 2018 to 2019 and 29 percent since 2015.

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