Up in Smoke? What does the New York Marijuana Regulation and Taxation Act (“MRTA”) mean for Condo and Co-op Boards and their employees?
As of March 31, 2021, cannabis is legal for medical and recreational use in New York. Adults 21 and over are permitted to possess up to 3 ounces of cannabis or .8 ounces of concentrated cannabis and generally to smoke anywhere cigarette smoking is permitted. Growing and sales are not legal quite yet, but will be once implementing regulations and an Office of Cannabis Management are set up, expected at the earliest sometime in 2022. The MRTA also includes social justice provisions including sealing and expunging certain past marijuana criminal convictions as well as restrictions on certain employment actions based solely on positive cannabis testing.
What about our smoking policy? The new law does not restrict a Board’s ability to restrict smoking marijuana in common areas, units, or apartments as part of a properly-adopted smoking policy. Bear in mind, though, that if your smoking policy bans all smoking including marijuana, reasonable accommodations may be required for residents who use marijuana for a medical purpose. For New York City buildings that have not yet adopted and published the written smoking policy required by Local Law 147, this change may present a good opportunity to do so.
What about employees? Employers may still maintain a drug and alcohol-free workplace. Nothing in the MRTA requires employers to permit use or possession of cannabis at work. Nor are employers required to tolerate employees being impaired or intoxicated at work. However, a cannabis-positive drug test alone will not be enough to support discipline in non-federally-regulated or safety-sensitive positions.
Except in those positions, New York employers now may not discipline employees for a cannabis-positive drug test alone or legal off-duty and off-site cannabis use that does not result in impairment at work. This is a substantial change in the law, and Boards and managing agents should review and update their employee testing and discipline policies to ensure that they are in compliance. While employers may still test for cannabis on documented reasonable suspicion of impairment at work, or following a near-miss or an accident at work, they may wish to consider removing cannabis testing from random and pre-employment screenings. In fact, New York City employers have been restricted since July 2020 from conducting pre-employment marijuana screening for non-safety-sensitive positions. We recommend reviewing and updating testing and discipline policies to ensure compliance. Improperly disciplining employees for off-duty and off-site marijuana use can now lead to a finding of employment discrimination and potential claims under Labor Law section 201-d, which creates a private right of action.