No longer a ‘pipe dream’: New York legalizes recreational marijuana

On March 31, Governor Andrew Cuomo took a breather from his “troubles” and signed the Marihuana Regulation and Taxation Act of 2021. New York now joins its neighbors Massachusetts, Vermont, and New Jersey in allowing recreational cannabis for use by adults 21 years old and older. Citing “social justice” as a driving force, the governor’s office projects the state could see tax revenues of up to $350 million annually from taxing adult cannabis use and the creation of 30,000 to 60,000 new jobs across the state in the legal cannabis industry. Many parts of the law, including employment-related sections, are effective immediately. Read on to learn how the new law affects public- and private-sector employers.

Toking as a protected activity

Under the new law, discrimination based on lawful cannabis use outside of work hours and off company premises is generally prohibited. The law amends New York Labor Law 201-d, which pertains to an employee’s “legal use of consumable products,” a category that protects the lawful use of alcohol and tobacco products.

The relevant section of the new law also applies to job applicants, suggesting pre-employment drug testing or inquiry could be viewed as discriminatory, especially if it leads to denial of the job application based on a positive result for cannabis or the applicant’s admission of use. Given the new law’s broad expungement of minor cannabis-related offenses, background checks that reveal now-decriminalized cannabis use are also problematic.

Federal exceptions