New York is updating the Off Duty Act to protect employees who use cannabis around the clock

New York’s Off Duty Act, which bans employers from prosecuting employees for lawful off-hour activities, now includes cannabis, a by-product of the state’s legalization of pots last month.

Here’s the gist that comes on a helpful primer published by The National Law Review.

New York has a law that prohibits employers from discriminating against workers for various legitimate activities outside of the workplace, including political activities (such as running for office or campaigning for a candidate), recreational activities, and the consumption of certain legal products.

This last part is most relevant here. The off-duty conduct law now covers the legal use by individuals of consumer goods, including cannabis, under state law, before the start or after the end of the worker’s working hours, as well as off the employer’s premises and without the use of the employer’s or equipment’s equipment other property; “And” including cannabis in accordance with state law, outside of working hours, off the employer’s premises and without the use of employer’s equipment or other property. “

However, the amended law on conduct outside of the service provides for circumstances in which an employer would not violate an employee’s crying pot use. These exceptions include situations where “the employer’s actions were required by state or federal law, regulation, ordinance, or other state or federal mandate” or when “the employee is affected by the use of cannabis, which means that the Worker exhibits certain articulate symptoms while at work that diminish or decrease the employee’s performance in relation to the tasks or duties of the employee’s job position. ”

An employer may also take action if the employee’s side effects caused by the pot “interfere with the employer’s obligation to provide a safe and healthy workplace that is free from recognized hazards as required by state and federal labor laws.”

Complications with the amended law on conduct outside of the service

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

“To be clear, the update to the law does not prevent employers from implementing and maintaining drug-free workplace policies, which are still highly recommended. However, the wording of the amendments only made it more complicated to maintain these guidelines, ”wrote Arnold.

“An employer cannot discipline an employee (e.g. resign) for using cannabis before the start of the working day, but can do so if he is“ affected ”by the use during working hours. Here, however, the law seeks to define “impairment” in such a way that: the employee exhibits certain articulable symptoms during work that reduce or diminish the employee’s performance of duties or tasks in the worker’s position, or that such specific articulable symptoms An employer’s obligation to provide a safe and healthy workplace that is free from recognized hazards as required by state and federal labor laws. ”

“That’s a mouthful!” Arnold added. “And it asks the Ministry of Labor for further clarification through regulations or other guidelines (and is of course interpreted by the courts).”

New York’s new cannabis law was officially passed last month after Governor Andrew Cuomo signed a bill on the last day in March.

It was a breakthrough for the state that had barely kicked off other legalization efforts in recent years. Cuomo called it “a historic day in New York – a day that will eradicate the wrongs of the past by ending harsh prison sentences, encompassing an industry that grows the Empire State economy, and prioritizing marginalized communities so that those who have suffered the most will be the first to reap the benefits. “

The regulated pot market in New York won’t be operational for at least a year, but the law made some immediate changes. For example, New Yorkers can now smoke pot in public, where tobacco smoking is also allowed.