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Matthew Weinick
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New York Marijuana Lawyers

New York Recreational Marijuana Lawyers

As New York State legalizes recreational marijuana use, collision with employment is sure to happen. In recognition of this fact, New York's legislature has amended Section 201-d of the New York labor law. Employment lawyers Famighetti & Weinick PLLC previously blogged about Section 201-d's protections. In brief and in its most general sense, 201-d has prohibited employers from taking action against employees who engaged in lawful recreational activities and political activities.

Since New York State’s move toward decriminalizing and legalizing recreational marijuana use, New York’s legislature amended Section 201-d to prohibit employers from taking actions against employee who lawfully use marijuana, off-duty. There, of course, important details, provisions, and caveats to understand. The key takeaway is that the marijuana use must be off duty, off the employer’s property, and from a lawful source of marijuana.

Preliminarily, the law covers only legal use of marijuana. In other words, if a New York employee is in possession of, or otherwise uses marijuana obtained illegally, the employee is not protected by Section 201-d. So if, for example, an employer were to see an employee leave work for the day, step off the employer’s property, and purchase marijuana in a “street deal,” on the corner, the employer could likely lawfully terminate the employee based on a reasonable belief that the employee engaged in an unlawful drug deal.

But, if the employer saw the employee purchase marijuana at a lawful dispensary, Section 201-d would protect the employer and the employer could not terminate or otherwise discipline the employee for lawfully purchasing the marijuana. Of course, the employer could terminate the employee for another legitimate and lawful reason.

Another caveat is that employees are not protected for using and being impaired from marijuana while working. Thus, the law does not allow employees to use marijuana while working, or who are even on break. In other words, while cigarette breaks may be common, don’t expect marijuana breaks to come to workplace near you, anytime soon. Similarly, employees who work at home cannot be terminated for using or possessing marijuana in their homes, as the home is not a work site under the law, but employees may terminate the employee based on articulable symptoms displayed during work hours.

Employers, however, cannot simply terminate employees who they merely suspect as being impaired by marijuana. Rather, employees must display “articulable” symptoms of impairment which either impair the employee’s ability to perform their duties or which interfere with the employer’s obligation to provide a safe workplace.

Notably, the Department of Labor has not defined what may constitute articulable symptoms of impairment, but has stated that drug testing is not a basis for determining current impairment. Similarly, a smell of marijuana or cannabis, alone, is not an articulable symptom of impairment.

Though the law generally applies to all private and public employers in New York state, the law does not apply to workers who are not considered employees. Examples include independent contractors and volunteers.

Concerning marijuana drug testing, the Department of Labor has made several notable observations. Marijuana drug testing is now unlawful, unless some other provision of law allows the particular employer to perform drug testing in a particular situation. Further, simply because another law may allow an employer to drug test does not, under Section 201-d, allow the employer to perform the drug test, unless the other law mandates the test. In other words, the testing must be mandatory, not merely permissive.

The New York State employment lawyers at Famighetti & Weinick PLLC are staying on top of the recent developments concerning marijuana discrimination in the workplace. In fact, partner Matt Weinick was interviewed by Newsday concerning workplace marijuana issues arising from New York’s new marijuana laws.

Employees terminated for lawfully using marijuana outside work hours may have a claim for wrongful termination in New York. A wrongful termination lawsuit for employees terminated for using marijuana may entitle the employee to an award of damages and an order from a court reinstating the employee. Further, employees who were required to undergo drug testing for marijuana in New York, may also have a legal claim against the employer.

Famighetti & Weinick PLLC are providing free case evaluations for wrongful terminations based on marijuana and cannabis use. To speak to a New York marijuana attorney, contact us at (631) 352-0050.

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