New York Updates Off-Duty Conduct Law To Protect Employees Who Use Cannabis Off The Clock

New York’s off-duty conduct law prohibiting employers from taking action against employees for lawful activity done while off the clock now includes cannabis, a byproduct of the state’s legalization of pot last month.

Here’s the gist, which comes via a helpful primer published by The National Law Review.

New York has a law barring employers from any discrimination against employees for various lawful activities performed outside the job, which include political activities (like running for office or campaigning on behalf of a candidate), recreational activities, and the consumption of certain legal products.

That last part is most relevant here. The off-duty conduct law now covers an individual’s legal use of consumable products, “including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property;” and “including cannabis in accordance with state law, outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.”

But the amended off-duty conduct law carves out circumstances under which an employer would not be in violation for crying foul on an employee’s pot use. Those exceptions include situations when “the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate,” or if “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.” 

An employer can also take action if the employee’s pot-induced side effects “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.”

Complications With The Amended Off-Duty Conduct Law

Michael S. Arnold of the National Law Review wrote that the amendment could lead to some complicated scenarios.

“To be clear: the update to the law does nothing to prevent employers from implementing and administering drug-free workplace policies, which are still strongly recommended. But the administration of these policies just became more complicated given the wording of the amendments,” wrote Arnold.

“An employer cannot discipline (e.g. terminate) an employee because they used cannabis before they started the workday, but can do so if they are ‘impaired’ by its use during working hours. Here, though, the law attempts to define ‘impairment’ such that: 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.” 

“That’s a mouthful!” Arnold added. “And it begs for further clarification from the Department of Labor via regulations or other guidance (and, of course, will be subject to interpretation from the courts).”

New York’s new cannabis law was officially enacted last month after Gov. Andrew Cuomo signed legislation on the final day of March.

It marked a breakthrough for the state, which had seen other legalization efforts in recent years barely get off the ground. Cuomo called it “a historic day in New York—one that rights the wrongs of the past by putting an end to harsh prison sentences, embraces an industry that will grow the Empire State’s economy, and prioritizes marginalized communities so those that have suffered the most will be the first to reap the benefits.”

The regulated pot market won’t be up in running in New York for at least a year, but the law did yield some immediate changes. New Yorkers are now, for example, free to smoke pot in public wherever smoking tobacco is also permitted.