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Business Report: Employment And Medical Marijuana

February 5, 2015

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Noreen DeWire Grimmick, partner with the Hodgson Russ law firm
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