New York's New Recreational Marijuana Law: Implications for Employers

Author: Emily Scace, XpertHR Legal Editor

March 31, 2021

New York Gov. Andrew Cuomo signed legislation today legalizing the recreational use of marijuana for adults ages 21 and older. With the passage of the new law, New York joins 15 other states and the District of Columbia in legalizing recreational cannabis.

Under the new law, employers may continue to enact and enforce policies prohibiting marijuana in the workplace. However, the law adds legal use of cannabis outside of work hours and off the employer's premises to the list of off-duty conduct that may not be the basis for discrimination in hiring and other employment decisions. In other words, while an employer is free to prohibit employees from using cannabis products on the job or working while under its influence, it may not decline to hire or fire an individual for the mere fact that the individual sometimes uses legal cannabis products at home.

Employers retain the ability to take adverse action against an employee who is impaired by the use of cannabis, meaning that the employee displays specific symptoms that interfere with work duties or threaten workplace safety. Employers may also take adverse action based on an individual's cannabis use if required to do so by a state or federal law or if failing to do so would result in the loss of a federal contract or federal funding.

Additionally, the law expands eligibility for medical marijuana and provides that individuals with previous marijuana convictions for conduct that is now legal will have their records automatically expunged - a provision with implications for employers' preemployment screening procedures.

Most sections of the New York recreational marijuana law take effect immediately, including the legalization provisions.