Law stated as of 14 Jul 2014 • USA (National/Federal)
This Legal Update discusses the New York Compassionate Care Act, enacted on July 7, 2014, which legalized medical marijuana use in New York. This resource also explains how the new marijuana laws may impact employers, including their employee policies and procedures on drug testing, disability accommodation and off-duty conduct.
On July 7, 2014, New York joined 22 other states and the District of Columbia in legalizing the use of medical marijuana to afford relief to patients suffering from certain debilitating illnesses. New Mexico, Minnesota, Florida and Nevada either enacted or amended medical marijuana legislation in the last year. Colorado and Washington also legalized the recreational use of marijuana, and last week the first recreational dispensary in Washington opened to great fanfare. The rapidly evolving landscape of the new marijuana laws presents several challenges for the nation's employers.
Key Provisions of the New York Law
As one of the more limited medical marijuana laws passed so far, the New York Compassionate Care Act strictly proscribes the individuals who qualify to use marijuana legally and the circumstances under which they can use it. Physicians must be certified and register with the state to legally prescribe medical marijuana, similar to the requirements in many other states. However, in New York, even certified physicians can only prescribe marijuana to patients certified as suffering from and experiencing symptoms of any of the following serious conditions:
Cancer.
HIV/AIDS.
Parkinson's disease.
Multiple sclerosis (MS).
Amyotrophic lateral sclerosis (ALS or Lou Gehrig's disease).
Damage to the nervous tissue of the spinal cord with neurological indications of intractable spasticity.
Epilepsy.
Inflammatory bowel disease.
Neuropathies.
Huntington's disease.
The health commissioner may supplement the list of qualifying conditions with five additional entries within the next 18 months.
New York controls the use and distribution of medical marijuana more than many other states. Under the new law, marijuana must be kept in its original packaging, and it may not be used or consumed in public. Other than Minnesota, New York is the only state in which smoking marijuana, whether in public or private, remains illegal despite its otherwise legalized use (see Legal Update, Jackson Lewis: Minnesota's New Medical Cannabis Law Protects Employees From Discrimination For Medical Marijuana Use). Patients can get a maximum of 30 days' supply at a time.
New York also has limited the distribution channels for marijuana. For New York's population of 19.5 million, only five private organizations will be licensed to produce and dispense marijuana, and each can operate only four dispensaries. (In contrast, Arizona has 98 dispensaries for its six million residents.) The licensed organizations must enter into labor negotiations with a bona fide labor organization representing its employees.
One of the more unique features of the New York law, and of particular relevance to employers, is that all patients certified for medical marijuana use are categorically deemed "disabled" under the New York Human Rights Law (N.Y. Exec. Law §§ 290 to 301) and other statutes (see Practical Implications for Employers).
The recently enacted marijuana legislation has broad-reaching practical implications for employers.
Drug Testing
Although no state laws require employers to accommodate individuals who are impaired by marijuana while working, the laws differ about whether an employer can discipline, fire or refuse to hire based on a positive drug test resulting from marijuana use that is legal under state law. For example:
The New York law defining certified patients as disabled suggests that this conduct would violate the anti-discrimination statutes.
The Delaware and Minnesota statutes specifically ban discrimination against employees or applicants on the sole basis of their status as qualifying patients or because of positive drug tests (16 Del. C. § 4903A(a)(3) and Minn. Stat. §§ 152.22 to 152.37).
However, at least one federal appellate court has held that an employer did not violate state medical marijuana law, public policy or disability accommodation laws when it discharged an employee who tested positive for drugs because of authorized medical marijuana use (see Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012)). Employers should consider the laws in the states where their employees live and work, and review their drug testing and other personnel policies for compliance with all applicable laws.
Disability Discrimination
An employee's status as a qualified medical marijuana user may afford the employee protection against discrimination based on a disability. For example, under the New York law, certified patients are expressly deemed "disabled." Therefore, employers may need to provide reasonable accommodations for medical marijuana users (or at least engage in the interactive process with them), as would be true for employees with other recognized disabilities.
For more information about reasonable accommodations and the interactive process, see:
Employers may have to bear the costs, either directly or indirectly, of legal medical marijuana usage. For example, a New Mexico appellate court has held that an employer and its workers' compensation carrier must reimburse the employee for medical marijuana costs (Vialpando v. Ben's Auto. Servs., No. 32,920, (N.M. Ct. App. May 19, 2014)).
Off-duty and Off-premises Policies
Some employers may have policies or procedures prohibiting certain kinds of illegal off-duty conduct. Employers need to consider the applicable marijuana laws before disciplining employees for off-duty, off-premises marijuana use in states where either medical or recreational use is now legal.
For more information on workplace policies and procedures, see: