Recap of the MRTA’s Amendments to NYS Labor Law Section 201-dAs explained in our earlier alert, the MRTA amended NYS Labor Law Section 201-d (“Section 201-d”) to prohibit employers from refusing to hire, employ, or license; to discharge from employment; or otherwise discriminate against an employee because he/she uses cannabis lawfully outside of work hours, off the employer’s premises and without use of the employer’s equipment or other property.The MRTA also amended Section 201-d by adding new subsection 4-a, which permits employers to take action against an employee or prohibit conduct where:The employer is or was required to take such action under state or federal statute, regulation, ordinance, or other state or federal government mandate;The employee, while working, manifests specific articulable symptoms of cannabis impairment that: (a) decrease or lessen the employee’s performance of his/her duties or tasks; or (b) interfere with the 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; orThe employer would b

As discussed in Kramer Levin’s alert earlier this year, New York’s Marijuana Regulation and Taxation Act (the Act) legalized recreational cannabis for individuals age 21 and older in New York State effective March 31, 2021. The Act also modified New York Labor Law Section 201-d (NYLL § 201-d) (which generally prohibits employers from discriminating against employees for engaging in legal recreational or political activities outside of work) to protect an employee’s legal use of consumable products, including cannabis, so long as such use occurs “outside work hours, off of the employer’s premises, and without use of the employer’s equipment or other property.”In October 2021, the New York State Department of Labor published guidance titled “Adult Use Cannabis and the Workplace” (guidance) to address common questions that employers and employees may have concerning how recreational cannabis may interact with employment.

[co-author: Kamil Gajda]On October 8, 2021, the New York State Department of Labor (“NYSDOL”) issued guidance in the form of Frequently Asked Questions (“FAQs” or the “Guidance”) to assist employers in navigating the Marijuana Regulation and Taxation Act (“MRTA” or the “Act”) and in understanding what they can and cannot do. As we previously reported, the MTRA, enacted on March 31, 2021, legalized recreational cannabis in the State. Of particular importance to employers, the Act amended New York Labor Law Section 201-D (“Section 201-D”) to create new legal protections for employees who engage in off-duty, off-premises cannabis use.The FAQs address several common workplace situations related to recreational cannabis use by employees, which we summarize below.Identifying “Specific Articulable Symptoms of Impairment”As amended by the MRTA, Section 201-D prohibits employers from discriminating against employees based on their use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.

On September 6, 2023, New York Governor Kathy Hochul signed a law that prohibits employers from requiring employees to attend employer-sponsored meetings the “primary purpose” of which is to communicate the employer’s opinions on religious or political matters, including relating to joining a labor organization. The law became effective immediately, and is another step in the small, but growing number of states, that are campaigning against so-called “captive audience” meetings.ProtectionsThe new law, Senate Bill (S) 4982 and Assembly Bill (A) 6604, modifies New York Labor Law Section 201-D and makes it unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of an individual’s refusal to:Attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters; orListen to speech or view communications, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.The law defines “political matters” as “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.”“Religious matters” are defined as “matters relating to religious affiliation and prac

rs from requiring employees to attend employer-sponsored meetings the “primary purpose” of which is to communicate the employer’s opinions on religious or political matters, including relating to joining a labor organization. The new law, which took immediate effect, comes amid a wider push against so-called “captive audience” meetings.Quick HitsThe new law makes it unlawful for employers in New York to take adverse action against employees who refuse to attend meetings, or listen to communications, the primary purpose of which is to communicate the employer’s religious or political views, including its views on the decision to join or support a union.Employers are also required to post a notice at work locations notifying employees of their employment protections under New York Labor Law Section 201-d.The new law took effect on September 6, 2023, expanding employment protections under New York labor law.S4982/A6604The new law, Senate Bill (S) 4982 and Assembly Bill (A) 6604, modifies New York Labor Law Section 201-d by making it unlawful for employers to refuse to hire, discharge from employment, or otherwise discriminate against an individual in terms of compensation, promotion, and terms and conditions of employment based on an employee’s refusal to “attend an employer-sponsored meeting … to communicate the employer’s opinion concerning religious or political matters.”S4982/A6604 defines “political matters” as “matters relating to elections for political office, political parties, legislation, regulation and the decision to support any political party or political, civic, community, fraternal[,] or labor organization.” “Religious matters” are defined as those “relating to religious affiliation and practice and the decision to join or support any religious organization.”The new law expressly does not prohibit:“casual conversations” between an employer or its agent or representative and employees “provided participation in such conversations is not required”;communicating to employees about “any

ny religious organization or association.”“Political Matters” DefinedThe bill defines political matters as “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.” This expansive definition would cover a wide range of employer speech, severely restricting employers’ ability to communicate with their workforce.By including the decision to join or support a union as a “political matter,” the bill would prohibit mandatory employer meetings about union campaigns and permit employees to refuse to “listen to speech or view communications” by an employer about the decision to join or support a union. If enacted, this bill could significantly restrict an employers’ ability to communicate with employees.Employees Protected for Refusal to Attend “Employer-Sponsored Events” or “Listen to Speech or View Communications”The bill would amend Section 201-d of the NY Labor Law to protect employees from discrimination or retaliation for refusing to attend a meeting held by the employer or designee for the “primary purpose” of communicating the employer's opinion concerning religious or political matters. Employees who attend but refuse to “listen to speech or view communications” at such a meeting would be similarly protected. Posting RequiredEmployers would be required to post a notice “in every workplace” to inform employees of their rights under Section 201-d. This posting requirement would include both the restrictions on political and religious matters and presumably other protected activities under Section 201-d, including the legal use of cannabis. (See NYSDOL Publication P420.) We anticipate that if the bill is enacted, the state will develop and publish a form of notice for employers to use, but no such form is available yet.Exemptions and LimitationsReligious and Educational Entities: The bill would exempt religious entities or educational institut

Employment Protections for Lawful Off-Duty Conduct Now Include the Use of CannabisNew York has long protected employees from discrimination based on an employee’s lawful off-duty conduct, including political activities, the legal use of consumable products — such as alcohol and tobacco — and other legal recreational activities outside work hours and off the employer’s premises. The MRTA amended New York’s protected off-duty conduct law (New York Labor Law § 201-d) to specifically include protections for lawful off-duty use of cannabis in the employment context.As amended, Labor Law Section 201-d makes it unlawful for an employer to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual because of: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 propertyan individual's legal recreational activities, 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.

Among other things, the MRTA also creates a new Cannabis Law which consolidates the laws affecting these programs.Amendments to NYS Labor Law Section 201-d (Legal Activities Law)Most notably for employers, the MRTA amends NYS Labor Law Section 201-d, often referred to as the legal activities law, to prohibit an employer from refusing to hire, employ, or license; to discharge from employment; or otherwise discriminate against an individual because he/she uses cannabis lawfully outside of work hours, off the employer’s premises and without use of the employer’s equipment or other property.With that said, amended Section 201-d provides that an employer would not be in violation of the law where it takes action against an employee 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,

This statute prohibits discrimination on the basis of an employee’s “political activities outside of working hours, off of the employer’s premises and without the use of the employer’s equipment or other property.” N.Y. Lab. Law § 201-d(1)(a). Importantly, New York’s Labor Law defines “political activities” as running for public office, campaigning for a candidate for public office, or participating in political fundraising activities.However, New York’s Labor Law protections for employees are not without limits.

On March 31, 2021, former Gov. Andrew Cuomo signed the Marijuana Regulation & Taxation Act (MRTA) legalizing recreational marijuana in New York state for adults. Relevant to New York employers, the MRTA amended New York Labor Law § 201-d to prohibit employers from disciplining or discriminating against employees who recreationally use or consume marijuana outside of work hours, off an employer’s premises, and without using an employer’s equipment or property.However, employers may take action against employees for marijuana use if: (1) the employer is required to take action under state, federal or other government mandate; (2) the employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease the employee’s job performance or interfere with the employer’s obligation to provide a safe and healthy workplace; or (3) the employer would be in violation of federal law or may lose federal funding by not taking action against the employee.The MRTA and § 201-d apply to all public and private employers in New York state, but do not cover independent contractors, volunteers, students who are not employees, or individuals working under familial obligations.