The recreational use of marijuana or cannabis products is now legal in New York. One of the results of this law is the creation a new class of protected employees—the recreational marijuana user.

Another New York law which has been on the books for almost thirty years provides that employers cannot discriminate against employees who consume a lawful product (such as cigarettes and alcohol) outside of the workplace and outside of work hours. Marijuana use is now protected by this law.

As is the case with alcohol, an employee who consumes marijuana or is under the influence of marijuana while at work can be disciplined. One of the challenges of monitoring marijuana use is the lack of a testing process which accurately determines the time of use. Under the most commonly used marijuana test it is impossible to tell whether an employee used cannabis on their way to work, or at a party three weeks ago. The determination of whether an employee is under the influence of cannabis while at work under the new law is based on the whether the employee shows “specific articulatable symptoms” of being impaired. This will be challenging.

Under the new law employers can no longer rely on pre-employment drug testing for cannabis in making hiring decisions, since use is now a protected activity and employment decisions cannot be based on a protected activity. Because of this it is likely that most employers will stop testing for marijuana. For instance, if a drug test shows positive for cannabis, and the employer declines to hire the person for another reason, the employer may be exposed to a discrimination claim because it had knowledge of the applicant’s use.

Since the legalization of medical marijuana in New York in 2014, employers have been required to treat the use of medical marijuana as a protected accommodation of a disability. An interesting question under the new law is whether an employee who claims to use marijuana to treat a disability, but does not have a medical marijuana card, is also protected under the disability discrimination laws. It is possible that an employee who has some sort of medical documentation for this use is protected under the disability discrimination laws, even though the employee does not have a medical marijuana card and is not obtaining marijuana from a state dispensary.

An unresolved complication is that cannabis is still illegal under federal drug laws. Under federal law, marijuana is a Schedule 1 controlled substance, the same as heroin. (By contrast, fentanyl is a Schedule 2 controlled substance.) Further complicating matters is the current Attorney General Merrick Garland, who has indicated that the Department of Justice will deprioritize enforcement of cannabis in states with permitted recreational use. Even still, while there is currently an effort in Congress to decriminalize marijuana, it is still illegal under federal law.

That conflict in federal and state law could create some problems for employers with federal contracts. The New York law does include a general exception for acts which would result in the loss of a federal contract or federal funding, but it is unclear how this will be interpreted by the courts. Employers who work under federal contracts which restrict illegal drug use by employees will face challenges in complying with these requirements, especially since there is no medical test which will determine if an employee is currently under the influence of marijuana.