Employment Law Ramifications of New York State’s Legalization of Marijuana

Owen H. Laird, Esq.

In 2014, New York State passed the Compassionate Care Act (“CCA”), which legalized marijuana for individuals suffering from certain serious illnesses. As of today, medical marijuana dispensaries are open in New York State, which joins roughly two dozen states where individuals can purchase medical marijuana. Individuals can now be certified as medical marijuana patients by certain registered physicians. Although marijuana may alleviate patients’ symptoms, it can still have intoxicating and impairing effects. Even marijuana advocates would agree that there are at least some jobs that should not be done by people under the influence of marijuana, for example, the operation of heavy machinery or passenger vehicles.

The advent of medical marijuana in New York raises the question of whether employers can still require a drug-free workplace and discipline employees with a valid prescription for medical marijuana for testing positive. Marijuana is illegal under federal law, and this conflict between state and federal law leads to significant uncertainty, particularly with respect to employment law.

Many employers require that their employees take one-time, periodic, or random drug tests, and testing positive for marijuana can lead to discipline, up to and including termination. However, now that medical marijuana is legal in New York, there are legitimate and legal reasons for an employee to use marijuana and, as a result, fail a drug test. On the one hand, the CCA states that a certified medical marijuana patient is disabled as defined by New York State Human Rights Law. The CCA also prohibits employers from taking adverse actions against employees “solely for the certified use” of medical marijuana. Thus, medical marijuana users have some legal protection. On the other hand, employees do not have an unfettered right to use medical marijuana at work, or work under its effects. The CCA specifically states that its anti-discrimination provisions “shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance” or “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.” However, determining whether any employee is presently under the influence of marijuana is not so simple; many drug tests do not determine if an individual is presently impaired, but only whether the individual had used marijuana in the recent past.

As New York’s medical marijuana program is only one day old, the state of the law and its practical effects are unclear.   The CCA suggests that employers still have the right to implement policies that require employees not work under the influence of marijuana, but, conversely, cannot discriminate against employees for using medical marijuana. Further, most employees likely are unaware of whether their use of medical marijuana will cause its employer to violate federal law or lose a federal contract.

New Jersey is one of the states that has already legalized medical marijuana. That state may offer a glimpse into what the future holds for New York (although New Jersey’s statute differs from New York’s insofar as New Jersey’s statute does not contain similar anti-discrimination language.) In New Jersey, lawsuits are pending which address whether an employer can terminate a medical marijuana patient for testing positive. It is very likely that, before long, a New York employer will terminate an employee who is also a certified medical marijuana patient, for using marijuana, and the courts will decide how the law will work in practice. Similar suits in other states have favored the employer, limiting the employee’s ability to use medical marijuana.

If you believe you have been discriminated against for using medical marijuana, please contact The Harman Firm, LLP.