As NY, NJ, and CT have legalized recreational marijuana, our firm has formally launched its Cannabis Law Practice Group to help our clients navigate the rapidly evolving cannabis laws and regulations. Each state’s law creates protections for employees who legally use recreational marijuana and prohibits employers from taking adverse employment actions for legal cannabis use. Important takeaways for employers in each state are summarized below. Additional considerations specific to employers in the healthcare field will be addressed in a future alert.
New York Marihuana Regulation and Taxation Act
- Employers are permitted to enact substance-free workplace policies that prohibit the use of marijuana during work hours, on company property, and while using an employer’s equipment or other property.
- Employers cannot discriminate against employees that legally use marijuana outside of work hours, off the employer’s premises, and without the use of the employer’s equipment or other property.
- The law provides three exceptions where an employer’s action against an employee related to that employee’s marijuana use would not violate the law:
- The employer was required to take action under state or federal statute, regulation, ordinance, or other state or federal government mandates;
- The employee manifests “specific articulable symptoms” while working that decrease or lessen the employee’s performance or interfere with the employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal law; or
- 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 funding.
- Employees have a private right of action to sue their employers for alleged violations of the law.
- An employer cannot reject an applicant solely on the basis of a positive drug test for marijuana.
New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act
- Employers cannot refuse to hire, discharge, or discipline an individual for the sole reason that the individual uses marijuana outside of work hours, off the employer’s premises, and without the use of the employer’s equipment or other property.
- Employers are permitted to have a drug-free workplace policy and prohibit the possession, transfer, display, transportation, sale and growth of marijuana in the workplace.
- An employer cannot use a marijuana-related criminal history to make any employment decisions.
- Employers are expressly permitted to drug test prospective or current employees for a pre-employment screening, upon reasonable suspicion that the employee used marijuana during work hours or while performing a work duty, as part of regular screening, for random testing of employees in safety-sensitive positions, and during the investigation of a work-related accident. However, the drug test must:
- Be based on “scientifically reliable objective testing methods and procedures”, which are defined as testing of blood, urine, or saliva (the definition does not include hair follicle testing); and
- Requires an employer to conduct a physical evaluation to determine whether the employee is impaired, and the physical evaluation must be conducted by an individual with the “necessary certification to opine on the employee’s state of impairment.”
- Employees do not have an express private right of action against their employers for alleged violations of the law. Whether or how employees will be able to challenge an employer that violates the law’s prohibitions is an open issue.
Connecticut Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis – Effective July 1, 2022
- Employers are permitted to prohibit marijuana possession, use, or other consumption at the workplace and to maintain a drug-free workplace.
- Employers are permitted to take action against employees upon reasonable suspicion of an employee’s use of marijuana while performing work responsibilities or after determining an employee shows “specific, articulable symptoms” of drug impairment that decrease or lessen performance, which include, but are not limited to:
- Symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, or irrational or unusual behavior;
- Negligence or carelessness in operating equipment or machinery;
- Disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property;
- Disruption of a production or manufacturing process; or
- Carelessness that results in an injury to the employee or others.
- Employers can take adverse action based on positive marijuana drug test results after a pre-employment drug test or random drug test where the employer has a policy stating that such a result may result in adverse employment action.
- Employees have an express private right of action to sue their employers for alleged violations of the law.
- Certain employers are exempt from the laws prohibiting employers from taking adverse actions against employees for their marijuana use, including, but not limited to, healthcare or social services, construction, manufacturing, transportation, public safety, and educational employers.
- As of July 1, 2021, the employment related provisions of the law exclude privileges, qualifications, credentialing, review, or discipline of a hospital’s or medical organization’s nonemployee, licensed healthcare professionals on the medical staff.
* * * * *
To view Garfunkel Wild’s complimentary webinar, “Legalized Medical and Recreational Marijuana: Navigating the Ever-Shifting Landscape for Employers,” click here.
Click Here to download the Legal Alert.