Pot Legalization Makes Key Changes to NY Labor Law

April 12, 2021 at 9:49 am Leave a comment

As I mentioned in a webinar summarizing New York’s recreational marijuana legislation presented by the Association on Friday, regardless of what your credit union decides to do with regard to banking cannabis as an employer, the law makes important changes to New York’s Labor Law that directly impact your HR policies and procedures.  Simply put, it is now illegal as a matter of state law to discipline an employee who uses cannabis during non-work hours.  But of course, nothing is as simple as it appears, so let’s take a deeper dive. 

One of the things everyone seems to know about employment law is that New York is an “at-will” employment state where employers can hire and fire employees at will, provided they are not doing so for discriminatory reasons.  In reality, there are several restrictions placed on your ability to discipline your employees, the most prominent of which is section 201-d of New York’s Labor Law.  This erstwhile statute contains a list of recreational activities for which an employee cannot be disciplined. 

For example, the statute provides that it is illegal to “discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment” because of an individual’s political activities during non-work hours.  New York’s marijuana law now extends similar treatment to “an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property”.

To address obvious potential problems with this prohibition, the law further provides that this prohibition does not extend to employers who discipline employees when:  

(i) the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;

(ii) the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or

(iii) the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Yours truly is officially predicting that these will be among the most heavily litigated provisions of the new law.  I’m also predicting that Hideki Matsuyama will win the 2021 Masters. 

For one thing, as drafted, the statute requires an employer to prove not only that an employee was under the influence of cannabis but that the employee was manifesting specific articulable symptoms while working that decreased or lessened the employee’s performance of the duties or tasks of the employee’s job position.  This is an awfully high standard, one that becomes even trickier to navigate if the employee claims that they are using the marijuana for medical reasons. 

Does this mean that it’s party time for employees?  Maybe not.  Not coincidentally, New York’s statute is similar to Colorado’s where recreational marijuana has already been legalized.   Brandon Coats was a quadriplegic employed by Dish Network who used marijuana in his home during non-work hours for medical reasons.  Colorado, like New York has a state level law prohibiting discrimination by employers against employees who use cannabis during non-work hours.  Nevertheless, the Colorado Supreme Court upheld Dish’s decision to fire the employee.  Why?  Because notwithstanding the state law, Coats activities were illegal as a matter of federal law and Dish had the right to fire him for this federal law violation. 

The ruling of the Colorado Supreme Court is of course not binding on New York’s courts.  You certainly should not implement your policies on the assumption that New York’s Court of Appeals will reach a similar conclusion.  Nevertheless, the case demonstrates that the legalization of cannabis has created a legal haze around HR issues that will be here to stay for quite some time. 

Entry filed under: HR, Legal Watch, New York State. 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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