Editor’s Note: this educational article deals with legal concepts summarized and condensed for space and understanding. This is not a comprehensive review of the legal matters within and should not be considered a substitute for actual legal opinions or advice.
ALBANY — You’e home after a long day’s work, and the stress has been building all day. Now that recreational pot is legal in New York and you’re off the clock, it’s fine to smoke it if you’ve got it, right?
Not so fast… before you reach for that joint, bowl, pipe, edible, or whatever form of cannabis you might legally be allowed to have, you should know that for some workers, legal weed is still very much off limits. Just because you can legally use marijuana recreationally in New York, not all CSEA members may use recreational marijuana without potentially negative consequences from your work.
To protect union members and prevent anyone from making costly mistakes, CSEA’s Legal Department has unpacked the provisions of the law, to figure out who, because of their work, can’t use marijuana recreationally.
Facts about the law
Officially named the Marijuana Regulation and Taxation Act (MRTA), and signed into law last March, the MRTA legalizes adult recreational use of cannabis products in New York, although there remain some restrictions on marijuana use, such as smoking or vaping it in most public places and automobiles.
The new law does establish some protections for employee marijuana use under certain circumstances, since New York’s Legal Activities Law protects employees’ off-duty conduct, including lawful use of consumable products. For example, employers usually can’t prohibit employees from smoking tobacco or drinking alcohol outside of work. The new law amends those existing protections to include marijuana, as long as your use is all of the following: (a) outside of work hours, (b) off the employer’s premise, and (c) without the use of the employer’s equipment or other property.
Furthermore, although adult recreational use of marijuana is broadly legalized, it’s not unlimited. Adult recreational pot use is likely to be treated in a similar fashion to adult use of alcohol: impairment at work, impairment while operating a vehicle, and consumption in prohibited places, among other circumstances, will still have consequences.
Still illegal under federal law
There’s also one big catch — despite the new state law, marijuana remains a Schedule 1 illegal controlled substance under federal law, which means it’s illegal to consume, sell, or possess in the United States. How zealously the federal government will enforce these laws in states that have legalized marijuana remains to be seen. For now, our union’s legal experts urge restraint.
“Employers may choose to rigidly follow federal law, and federal agencies could choose to prosecute violations of the law, so even though it may be legal in New York, members should exercise extreme caution. When in doubt, abstinence is still the safest practice when it comes to marijuana,” said CSEA General Counsel Daren Rylewicz.
CSEA has shared more comprehensive legal advice to union leaders and staff and has urged them to review employer drug use and testing policies in light of the new law, and to negotiate policies that ensure supervisors are both aware of the legal restrictions and understand the visible symptoms that may demonstrate impairment. CSEA’s Legal Department will continue to monitor how the new law is interpreted and applied.
Who should avoid legal weed?
So, who can’t use legal pot because of their work? Here’s a brief (but not comprehensive) rundown:
Public safety workers
Under federal law, it’s illegal for an individual to own or possess firearms or ammunition if they use marijuana. Agencies employing public safety personnel who use or handle firearms and/or ammunition will be entitled to rely on the federal law and can seek termination if they know or have reason to believe workers are using marijuana, even if not at work. The state Department of Corrections and Community Supervision (DOCCS) distributed a memo in April indicating that marijuana use remains prohibited for employees with peace officer status, as well as their employees who operate motor vehicles that qualify under the Omnibus Transportation Employee Testing Act (OTETA). Even if you work for a public safety agency, but not in a public safety position, the best course of action to avoid disciplinary action is to refrain from using marijuana.
Commercial Driver’s License (CDL) holders
Workers who hold CDLs as a condition of their employment are subject to random drug testing in the workplace under the U.S. Department of Transportation’s regulated drug testing program. The MRTA does not change this or authorize the use of Schedule 1 drugs. The best practice is to avoid all exposure to and use of marijuana, including medical marijuana, which is not permitted under federal law.
You work for an employer that receives federal funding
If your employer receives federal funding through grants or contracts, such as OPWDD, public housing authorities or Health Research Inc., they are supposed to maintain a drug-free workplace. Therefore, do not use, possess, sell, distribute, or grow marijuana.
Licensed professionals and those working in Medicaid positions
If you maintain a professional license in New York, such as nurses, doctors, physical therapists, and your employer participates in the NYS Medicaid Program, you could be placed on the Medicaid Exclusion List if you receive a decision of professional misconduct due to cannabis impairment. Even if you don’t have a professional license but work in a position encompassed by the exclusion list, such as direct support assistants in OPWDD, you can be charged with conduct endangering others if found to be impaired by marijuana. This can lead to you losing your job. Do not practice while impaired by marijuana, and do not bring it into the workplace, provide to service recipients, or use before work.
School district workers
School district employees must be careful. New York still maintains drug-free school zones where illicit drugs may not be used, and they may not use or possess marijuana within 1,000 feet of school grounds or on work time while off of school grounds. Districts also receive federal funding, making them subject to federal enforcement. We recommend that best practice is for employees to avoid exposure to and use of marijuana, and under no circumstances should an employee possess pot while on school grounds, arrive to work impaired, or use it on work time
Higher education workers
Workers on college campuses are subject to caution as their facilities receive federal funding and are therefore subject to federal law oversight. The law requires these facilities to have policies against illegal drugs on school property. Workers should avoid exposure to and use of marijuana, and under no circumstances should they possess it on school grounds, arrive to work impaired, or use marijuana on work time.
All other workers
Even if you do not fit in any of the above categories, please be very careful. Your employer policies may provide for discipline in the event of a positive test for marijuana or arrests/charges/ convictions for marijuana-related offenses (like driving under the influence). Do not work while impaired by marijuana and do not bring marijuana to your workplace. Do not use marijuana before work even if you do not think the amount used would cause impairment.
— Mark M. Kotzin
The new law
New York’s penal law was immediately amended to expressly declare the following “lawful” for people aged 21 or older:
- Possessing, displaying, purchasing, obtaining, or transporting up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
- Transferring, without compensation, to a person 21 years of age or older, up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
- Using, smoking, ingesting, or consuming cannabis or concentrated cannabis (unless otherwise prohibited by state law).
- Possessing, using, displaying, purchasing, manufacturing, transporting, or giving to any person 21 years of age or older cannabis or concentrated cannabis paraphernalia.
- Assisting another person who is 21 years of age or older, or allowing property to be used, in any lawful acts listed above.
