The Legalization of Medical Marijuana Could Have a Significant Impact on the Workplace
October 17, 2014
By: Kerry W. Langan
On July 5, 2014, Governor Cuomo signed the Compassionate Care Act, making New York the twenty-third state to legalize medical marijuana. This new law creates a medical marijuana program for individuals suffering from certain severe, debilitating, or life-threatening conditions (e.g., cancer, ALS, Parkinson’s disease, epilepsy, etc.). The goal of the program is to ensure that medical marijuana is available for certified patients with “serious conditions” and is administered in a manner that protects the public health and safety. To that end, the law will be regulated by the New York State Department of Health, which will certify physicians to administer the drug, register organizations to provide the drug, issue identification cards to qualifying individuals, establish the list of “serious conditions,” and regulate the price of the drug. This program is expected to be up and running within the next 18 months. In the meantime, employers should become familiar with the ways in which this law may impact the workplace. Notably, the law creates certain protections for employees who legally use medical marijuana. In this regard, employers are prohibited from taking disciplinary action against employees because of their lawful use of the drug. In addition, employees lawfully using medical marijuana are deemed to have a “disability” under the New York Human Rights Law. As a result, employers who discipline or terminate an employee for lawfully using medical marijuana may open themselves up to a disability discrimination claim. Furthermore, employers will be required to consider making workplace accommodations for individuals who utilize medical marijuana. While this aspect of the law will likely present new challenges for employers, there are certain things employers should be mindful of that will assist them in managing these situations:- The law does not prevent employers from enforcing policies and procedures prohibiting employees from performing their job duties while impaired by a controlled substance. Accordingly, employers can lawfully prohibit all employees, including those that utilize medical marijuana, from working while impaired. As a practical matter, an employer who is on notice that an employee is certified to use medical marijuana may find it helpful to request information from the employee’s doctor to determine if and to what extent the employee may be impaired in the performance of his/her job duties. The employer may need to consider whether accommodations can be provided to allow the employee to work unimpaired (such as modifying the employee’s hours of work based on his/her medical use regime).
- The law does not require employers to allow employees to utilize or carry medical marijuana if it would violate federal law or put their business in jeopardy of losing a federal contract or federal funding.
- An individual must obtain a registration identification card and must carry the registration card whenever the individual has marijuana in his or her possession. This registration card will make it easier for employers to verify whether employees are lawfully in possession of marijuana in the workplace. If an employee has marijuana in his or her possession and is not able to produce the registration card upon demand, the employee is not lawfully utilizing the drug and is not entitled to the employment protections detailed above.
- In addition to a registration card, an individual must also have a valid prescription from a certified physician in order to lawfully use medical marijuana. Employers should be aware of this in the event an individual tests positive for marijuana use. That is, a positive result for marijuana may not necessarily be a test result that justifies adverse employment action.
- Certified individuals are strictly prohibited from smoking medical marijuana. Therefore, if an employee smokes marijuana in the workplace or if the employer reasonably concludes based on other evidence that the employee is smoking marijuana recreationally (e.g., smelling of marijuana smoke), the employee will be outside the scope of employment protection.
- Certified individuals are prohibited from consuming marijuana (in any form) in a public place. Public place is not currently defined; however, the Commissioner of Health was granted the authority to issue regulations defining “public place.” If the Commissioner defines “public place” to include the workplace, employers will not be required to accommodate employees by allowing them to consume the drug in the workplace (and, of course, if ingestion at work would result in impairment, this would not be required in any event).
