New York Recreational Cannabis: Drug Testing Impacts

April 5, 2021

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On March 31, 2021 Governor Cuomo signed into law Senate Bill 854-A, the Marijuana Regulation and Taxation Act (“The Act”), legalizing the recreational use of marijuana in New York State.

While regulations will take years to develop around the growth and sale of marijuana, The Act is expected to immediately impact drug testing in similar ways to other states with legalized recreational marijuana. Notably, The Act requires employers to accommodate out-of-office use of marijuana by their employees and prohibits employment discrimination on the sole basis of the employee or candidate using recreational cannabis. It is important to note that despite the forgoing, employers are not required to exempt anyone from any requirement of federal law or regulations or to accommodate at work usage or impairment.

Unless otherwise provided by law, an employer cannot refuse to hire, employ, license, discharge, or otherwise discriminate against an individual in terms of compensation, promotion, or conditions of employment because of their use of legal marijuana products or their legal recreational activities, including cannabis use, when done in accordance with state laws. This applies if the individual uses cannabis prior to or after work hours and off the employer’s premises without the use of the employer’s equipment or other property.

The Act does not limit the authority of an employer to enact policies pertaining to cannabis in the workplace and employers can take action pertaining to cannabis use when: 1) the employer’s actions were required by state or federal law, statute, regulation, ordinance, or mandate; if an employee is impaired by cannabis use; and, If not taking action would require the employer to commit an act that would cause them to be in violation of federal law or would result in loss of a federal contract or funding.

Source: Current Consulting Group and the law: https://www.nysenate.gov/legislation/bills/2021/S854

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes.  First Advantage is not a law firm and does not offer legal advice.  The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice.  First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information.  Regulatory developments and impacts are continuing to evolve in this area.

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