An article by Steven Hurd, Alex Downie and Laura Fant of global law firm, Proskauer, describes the guidance recently issued by New York State, one of five states to legalize the recreational use of marijuana this year. Currently, recreational use of marijuana is legal in 18 states and in D.C., and has been decriminalized in another 13 states. New York State recently published guidance for employers that outlines the limitations they have to restrict workers from using the substance during the workers' off-hours.

According to the authors, the New York Labor Law prohibits "discrimination by an employer against an employee because of certain lawful outside work activities," and this prohibition now applies to the recreational cannabis use.

The guidance makes clear that the prohibition on discrimination on the basis of cannabis use applies to all public and private employers in New York State, regardless of size, industry, or occupation.
...[however] employers generally have broad discretion to prohibit cannabis use at the worksite during work hours.

The guidance states that employers may also prohibit employees from possessing cannabis at the worksite ...

The authors also note that the guidance prohibits employers from drug testing employees for cannabis unless a number of enumerated exceptions applies.

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