New York Goes To Pot, What It Means For Your CU

March 25, 2021 at 8:59 am Leave a comment

With yesterday’s announcement that the Legislature reached agreement on legalizing the recreational use of marijuana in New York State, it is time for all credit unions to hurry up and wait when it comes to deciding how aggressively they are going to engage in this emerging field.  The hurry up part applies to all credit unions that, within months, will have to adjust HR policies, review BSA frameworks and generally engage their Boards so that everyone is in agreement on how to operate in this brave new world.  The wait part comes from the need to recognize that even as New York State goes forward with its plans, the stubborn fact remains that the sale and distribution of marijuana remains illegal as a matter of federal law, and that credit unions that ignore this reality are putting themselves at risk of serious legal, reputational and operational consequences.

There is no need to take my word for it.  Just the other day, the American Banker reported that Live Life Federal Credit Union was subject to this administrative order for its non-compliance in relation to its marijuana banking practices.  Among the deficiencies cited by NCUA was the credit union’s lack of automated systems to comply with its requirements to monitor red flags regarding Marijuana-Related Businesses as detailed by FinCEN. 

NCUA’s action is a well-timed cautionary tale to any New York credit union that rushes into the space.  No matter how legal marijuana is made on the State level, there are still numerous additional safeguards that must be put in place such as enhanced due diligence requirements and being able to periodically file up to three different types of Suspicious Activity Reports (SARs) on an ongoing basis.  And remember, you are dealing with a highly specialized business for which your credit union will have to have demonstrable expertise.  Last, but not least, certain Federal Reserve Banks have signaled an uneasiness to provide access to the Federal Reserve System to credit unions that engage in banking marijuana.  Clearly, this system needs to clarify where it stands on this issue.

But even with all these legitimate concerns, it is also time for your credit union to hurry up and start preparing for this new reality.  Even if your credit union decides it wants no part of marijuana banking, it will still have to determine its risk tolerance for banking individuals associated with this industry.  For example, if your credit union decides not to provide banking services to Marijuana-Related Businesses, will it extend this prohibition to employees of these businesses who come to the credit union for a mortgage loan? 

Then, of course, there are a multitude of HR issues.  Is your credit union prepared for the employee who claims that she needs to take marijuana during the day because of a medical condition?  And just how hard a line are you going to take against employees who appear to be working under the influence?  Will your stance change if there is no related diminution in their work product?  These are the type of issues that you can thoughtfully consider in the coming months or be forced to confront for the first time when they occur once recreational marijuana is legal.

Entry filed under: Compliance, HR, New York State, Regulatory. Tags: , , , .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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