In previous columns, we have covered New York's attempts to roll out its adult-use cannabis program under the Marihuana Regulation & Taxation Act ("MRTA"), which was signed into law in March of 2021. However, in addition to ushering in adult-use cannabis, the MRTA also revamped New York's medical marijuana law — which was previously governed by New York's Compassionate Care Act (which was in place since 2014) — expanding access to the program and amending New York Labor Law 201-d to provide protections to employees.
New York Labor Law protection for off-duty cannabis use
Subject to certain limitations, the general rule is that most employees of private sector employers will be protected employees to use cannabis recreationally on their own time, off of the employer's premises and without use of the employer's equipment or other property ("Private Use"). This protection means that "[u]nless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of" Private Use.New York Labor Law 201-d ("NYLL 201-d").
Exceptions and limitations to Private Use include but are not limited to:
•Where Private Use "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest";
•For certain employees of New York State agencies;
•For certain public employees engaged with certain water vessels where Private Use would violate a provision "of a collective bargaining agreement concerning ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties," among other limitations to such public employees.
NYLL 201-d provides a safe harbor to an employer who acts "based on the belief" that its actions were "required by statute, regulation, ordinance or other governmental mandate," were "permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement," or the employer or a previous employer "deemed" the employee's actions "to be illegal or to constitute habitually poor performance, incompetency or misconduct."
Employers may also have health, disability or life insurance policies that distinguish employees for the type or price of coverage "based upon the employees' recreational activities or use of consumable products, provided that differential premium rates charged employees reflect a differential cost to the employer and that the employers provide employees with a statement delineating the differential rates." See NYLL 201-d.
New York City and New York State 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 submit to cannabis testing. This protection applies to both medical and recreational use.
The NYCHRL creates exceptions for: law enforcement positions; certain positions on public construction project; work as a construction superintendent, site safety manager or site safety coordinator on any construction project; a position requiring a commercial driver's license; a position involving the supervision of children, medical patients or "vulnerable persons" as defined in the New York Social Services Law; or any position that may significantly impact the health or safety of employees or the public.See New York City Administrative Code §§ 8-107(31) and 8-102.
This provision of the NYCHRL also does not apply to mandatory drug testing of applicants under United States Department of Transportation regulations; drug testing required to receive federal government funds; drug testing required by federal or state law to promote safety or security; or if required by a collective bargaining agreement.
Medical uses of cannabis under the NYSHRL and the NYCHRL
New York courts have grappled with medically prescribed cannabis use as a requested accommodation for certain disabilities. The New York State Human Rights Law ("NYHRL") defines medical marijuana use as a protected disability. In contrast, the NYCHRL does not.
For instance, the Appellate Division, First Department (which covers Manhattan), recognized that the NYCHRL "must be construed liberally to ensure maximum protection" when it comes to medical marijuana. See Gordon v. Consol. Edison Inc., 190 A.D.3d 639, 640 (1st Dep't 2021) (holding that an employee's irritable bowel disease treatment by medical marijuana constituted a disability under the NYCHRL).
As a result, the Court held that the NYCHRL required the employer to engage in a cooperative dialogue with the employee over her use of medically prescribed marijuana before terminating her employment.
In a post-Gordon case where an employee "clearly made a strategic decision to prosecute [the] case, from its inception, on the theory that being a certified medical marijuana user is, itself, a protected disability" under the NYCHRL, the Court held that the law did not cover medical cannabis use. See Scholl v. Compass Group USA, Inc., 2022 W: 2716950 (S.D.N.Y. July 13, 2022) (MKV) ("It is beyond dispute that the New York City Human Rights Law does not recognize marijuana use as a protected disability.").
Indeed, the court pointed out that the NYCHRL's definition of disability expressly provides: "In the case of alcoholism, drug addiction, or other substance abuse, the term 'disability' … does not include an individual who is currently engaging in the illegal use of drugs when the [employer] acts on the basis of such use."
Moreover, notwithstanding the protected use, employers are not without power to discipline employees. In Apholz v. City of Amsterdam, 2023 WL 3139971 (Supreme Court, Montgomery Co., Apr. 19, 2023), the court found that the NYSHRL "does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace" or require an employer "to retroactively excuse the misconduct as an accommodation."
Conclusion
Subject to the exceptions identified above, New York employers will want to exercise caution before disciplining employees for Private Use of cannabis and will want to appreciate that all employees who are certified patients for use of medical marijuana are, by virtue of that certification, disabled under the NYSHRL (and may also have a disability under the NYCHRL). Such persons are entitled to reasonable accommodations under New York law.
Alex Malyshev is a regular contributing columnist on legal issues in the cannabis industry for Reuters Legal News and Westlaw Today.