On March 31, 2021, New York Governor Andrew Cuomo signed into law the New York State Cannabis/Marijuana Regulation & Taxation Act, which legalized the use of recreational marijuana for individuals ages 21 and older.

Among other things, the Act establishes a Cannabis Control Board and Office of Cannabis Management that will be responsible for regulating adult-use marijuana and creates a Chief Equity Officer position to be appointed by the Cannabis Control Board. It also allocates significant funding to social equity concerns, expands eligibility for medical marijuana patients and creates licenses for distributors, processors and retailers of recreational cannabis.

Notably for employers, the Act makes clear that it is not intended to limit the authority of any employer to enact or enforce policies relating to cannabis in the workplace.  The Act also amends section 201-d of the New York Labor Law (NYLL), which prohibits discrimination because of an individual’s lawful outside work activities, to include cannabis use in accordance with state law.  However, an employer would not be in violation of the law if it takes action related to the use of cannabis based on the following:

  • the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal government mandate;
  • 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 workplace, free from recognized hazards, as required by state and federal occupational safety and health 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 federal funding.

The Act takes effect immediately upon signing, though cannabis sales will not begin until the Cannabis Control Board is formed and state officials draft regulations that will control the market (including how the Office of Cannabis Management would award licenses and assess taxes).  Based on this, state lawmakers are estimating it could take up to two years for cannabis sales to begin.  We will continue to report on any further developments with regard to this law.