BY NOREEN DEWIRE GRIMMICK
In July 2014, Gov. Andrew Cuomo signed the
Compassionate Care Act (CCA) also known as
the “Medical Marijuana Law”. New York is now
the 23rd state to enact such a law.
Rules and regulations which will govern the
prescribing, manufacture, distribution, and sale
of marijuana have been written and are likely to
be adopted this year. New York employers should
be aware that the CCA includes language which
provides workplace protections against discrimination
for patients who are certified to use
marijuana for medicinal purposes under this law.
Employers should stay well-informed about
this legislation and should also be considering
how medicinal marijuana use could impact their
workplace, considering all the unique characteristics
of their specific workplace.
A few basic concepts about this law should be
appreciated to understand workplace impacts.
First, the types of illnesses which would serve to
permit a New York health care provider to certify
a patient to use medicinal marijuana include cancer,
HIV/AIDS, Lou Gehrig’s disease, Parkinson’s
disease, multiple sclerosis, spinal cord damage
causing spasticity, epilepsy, inflammatory bowel
disease, neuropathies, and Huntington’s disease.
Second, smoking marijuana is prohibited by
this law. Third, the certified patient who is using
the drug must always have their certification with
them while using, carrying, buying or transporting
the drug.
While employees or job seekers in this state
who either have, or are perceived as having the
serious illnesses defined under the CCA could
already be considered “disabled” for purposes
of protection against discrimination under state
and federal law, now the CCA specifically provides
these employees or job seekers who are qualified
users of medicinal marijuana in New York with
additional protection against discrimination under state law by virtue of their use of medicinal
marijuana when they are certified to do so under
the provisions of the CCA.
Therefore, the certified use of medicinal
marijuana by an employee triggers the provisions
under the New York Human Rights Law (NYHRL)
that require an employer to provide reasonable
accommodations to a “disabled” employee, absent
undue hardship to the employer. Taken to the next
step in the analysis, the NYHRL will now require
that New York employers engage in an interactive
process with such employees to ascertain whether
a reasonable accommodation is available for them
to perform the essential functions of their job
given their disabled status as a certified user of
medicinal marijuana under the CCA.
How will this play out in the workplace? Let’s
consider some examples. Consider the example
of an employment situation where employees are routinely tested for illegal drug use. If an employee’s
test comes back positive for marijuana use,
before instituting a disciplinary action against an
employee who tests positive, an employer should
consider whether the employee is a certified user
under the CCA. Workplace policies concerning
drug testing and disciplinary action should be
re-evaluated with the CCA provisions in mind.
What if an employee who is a certified user
comes into work impaired? In this instance,
employers have some protection under the CCA
which specifically states that employers are entitled
to enforce workplace policies that prohibit
employees from working while their abilities are
impaired by a controlled substance. Will this protection
for employers conflict with the provision
that protects employees against discrimination
for medical marijuana use?
This is going to be interesting to see, because I
think there are likely going to be cases that raise a
conflict for an employer. If the employer believes
the employee is impaired but the employee argues
he or she is not and is instead being discriminated
against because of their status as a lawful user,
how will this conflict be resolved?
More than ever it is important for employers to invest in training their staff to report concerns to
appropriate personnel, have skillful interactions
with employees they believe to be impaired, keep
detailed records concerning observations of impairment,
and put a process in place for addressing
such issues. Reasonable steps to show that all
such cases of concern for “on the job impairment”
are treated in the same fashion with a uniformly
applied policy and discipline will certainly help
in the defense of an employer when claims of
discrimination are made.
This is a brief analysis of a comprehensive law
that has repercussions far beyond the discussion
offered here. There is no question that a new body
of case law concerning medicinal marijuana use
on the job is likely going to develop under the
NYHRL.
No employer wants to be the test case for
this new law with its built in protections against
employment discrimination, so employers should
start looking at their work place policies now and
seek legal guidance to prepare for the effect that
this law will have on their work place.
Grimmick is a partner with the Hodgson
Russ law firm which has offices in Saratoga
Springs.
Photo Courtesy Hodgson Russ