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Terminating an employee who tested positive for marijuana was once a fairly risk-free decision. With nearly half the states having now adopted some form of legal protection for medical marijuana users, the stakes surrounding such a decision have gotten higher. Employers in such states—including New York—must consider a number of factors now before taking adverse action against employees who use marijuana for medical reasons. How, you ask, should New York employers address such matters?

The Compassionate Care Act (Act), signed into law in July 2014 and implemented in January 2016, allows New York residents to legally purchase and use (but not smoke) medical marijuana. New York State was the twenty-third state to allow legal access to medical marijuana. According to the New York State government official website, as of July 26, 2016, 639 physicians have registered for the New York State Medical Marijuana Program, and 5,966 patients have been certified by their doctors. Based on these numbers, the time has come for employers in New York to understand their obligations and insure that their policies are in compliance.

Pursuant to the Act, "Certified Patients" prescribed medical marijuana are deemed to have a disability under the New York State Human Rights Law (NYSHRL). This means that New York employers with four or more employees are prohibited from terminating or refusing to employ an individual on the basis of his/her status as a certified medical marijuana patient. Further, employers must reasonably accommodate an employee who is a "Certified Patient" as a result of his/her deemed disability. The Act specifically provides that Certified Patients shall not be subject to "disciplinary action by a business . . . solely for the certified medical use or manufacture of" marijuana. Accordingly, an employer may be subject to a discrimination claim if it fires or disciplines an employee for lawfully consuming or manufacturing marijuana under the Act.

The Act contains two exceptions. First, it does "not bar the enforcement of [an employer's] policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance." Second, the Act does "not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding." The exceptions are important in that an employer may, for example, still restrict the use of marijuana in the workplace and have policies prohibiting employees from working while impaired by marijuana.

Given the protections afforded to "Certified Patients," the Act has significant implications for New York employers, especially with regard to potential discrimination claims, drug testing and workplace drug policies. Following are a few key points for New York employers to note in order to minimize the risk of liability:

  • Certified Patients are deemed disabled under the NYSHRL. Whether an accommodation is necessary will depend on the particular circumstances, including the type of business, the employee's position and the employee's need for medical marijuana. Employers should engage in an interactive process with any employee who is a certified marijuana patient.
  • Employers are not required to allow a Certified Patient to use marijuana in the workplace.
  • Employers with federal contracts or funding that are subject to federal regulations may fall under an exception. The Act does not require an employer to take any action that would cause it to lose a federal contract or funding.
  • Employers should be proactive and ensure that their human resources managers and supervisors understand an employer's obligations and how to handle employees who are certified to use medical marijuana. Employment counsel can be called on to assist with training managers/supervisors.
  • Employers are encouraged to have employment counsel review their drug testing and substance abuse policies to ensure compliance. Multistate employers should understand their obligations to employees in each state, as they may vary.

If you have any questions regarding the issues raised in this article, please contact Blythe E. Lovinger at +1 (212) 407 7770, Marc B. Schlesinger at +1 (212) 407 6935 or the Vedder Price attorney with whom you have worked.

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