Allyn & Fortuna LLP
New York Employers Need to Know About Medical Marijuana
Diana Uhimov, February 23, 2016
The Compassionate Care Act (CCA) was signed into law in New York in 2014, making New York the 23rd state in the U.S. to legalize medical marijuana. The CCA regulates the manufacture, sale and use of medical marijuana in New York. Under the Act, certified patients are allowed to use marijuana for treatment of a “serious condition” so long as the treatment is prescribed by a certified physician. Additionally, the CCA establishes employment regulations for medical marijuana use, including the creation of new anti-discrimination protections and accommodation obligations for such users. In January 2016, the first dispensaries offering medical marijuana opened. The advent of medical marijuana raises novel issues for employers, making it important to understand their obligations with respect to medical marijuana and any employees using it.
The law provides that certified patients may not be subjected to “disciplinary action by a business” for exercising their right to use medical marijuana. It also states that being a patient who was prescribed medical marijuana in New York is considered to have a disability under the New York State Human Rights Law (HRL). Accordingly, New York businesses with four or more employees are prohibited from firing or refusing to hire and discriminating in compensation or in the terms and conditions of employment, based on an individual’s status as a certified medical marijuana patient. If an employer fires or otherwise disciplines an employee for the lawful use of marijuana, it may face a discrimination claim.
Notwithstanding the legal protections granted under the law, employers may still enforce policies that prohibit an employee from performing his or her employment obligations while under the influence of a controlled substance. Accordingly, New York employers are permitted to implement reasonable policies—including drug testing—to ensure that an individual is not working while under the influence of a controlled substance (including marijuana) or engaging in the illegal use of drugs. However, it is difficult to determine whether any employee is under the influence of marijuana as most drug tests do not determine present use, but only whether they have used marijuana in the recent past.
Additionally, marijuana remains illegal under federal law, resulting in potential conflicts for certain employers between the CCA and federal law. Under the CCA, employers are not required to take actions that would put the employer in violation of such laws or cause it to lose a federal contract or funding. Businesses subject to federal regulations that require certain testing or safety precautions related to marijuana use must still abide by these regulations, and such compliance will not be deemed a violation of New York law. Accordingly, employers would not, for example, be subject to claims for refusing to hire a medical marijuana user in a position where marijuana use is prohibited under federal law. Federal agencies that have policies pertaining to marijuana use include the Department of Transportation, Department of Defense, Department of Energy, among others.
Employers may also need to provide reasonable accommodations to employees or potential employees who are certified patients under New York’s HRL. Whether an employer will need to accommodate an employee’s use of medical marijuana, and how to provide those accommodations, will depend upon the type of business, the circumstances surrounding the employee’s need for medical marijuana and underlying medical conditions, and the employee’s essential job duties. In the event that a certified patient requires an accommodation, it may be prudent to engage in a dialogue with that employee. Despite the duty to accommodate, New York law does not require an employer to permit the user to bring marijuana into the workplace or to use it on the premises. Employers should use caution when implementing accommodations to ensure that they are not illegal under federal law.
New York employers should be proactive about compliance with the CCA. The first step is to become familiar with the law and how it may impact your workplace. Employers should evaluate their policies and procedures regarding a drug-free workplace and discipline for violations of the policy. It may be necessary to update or revise any workplace drug policies already in place. A clear policy can minimize the risk of liability. If an employer wishes to enforce policies that prevent their employees from using controlled substances (including medical marijuana) during work hours, it should give notice of these restrictions to employees.
