Will NY Employees Be Protected from MMJ Firing?

New York’s Compassionate Care Act contains a provision that appears to protect certified medical marijuana patients from enforcement of zero tolerance drug policies in the workplace. The law was widely criticized when it was enacted in July 2014 because it covered so few conditions and specified vaporization as the only legal means of ingestion. The provision extending disability discrimination protection to medical marijuana users flew under the radar in early analyses.

If Brandon Coats, the quadriplegic who was fired solely because of off-duty legal medical marijuana use at his home in Colorado, had lived and worked in New York, would his job have been protected? Perhaps so.

For all the criticism it initially attracted, New York’s Compassionate Care Act may serve as a model for how to resolve a dilemma that has plagued medical marijuana patients since legalization began.

 

What is Legal Medical Use in New York?

First of all, it is worth noting that the Compassionate Care Act is not expected to be fully implemented until 2016; regulations are currently being drafted as employee handbooks are being furiously revised. When the law rolls out, it will protect medical use for 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. Smoking marijuana is prohibited and certified patients must always have their certification with them while using, carrying, buying or transporting the drug.

 

Disability and Reasonable Accommodation

Employees and job applicants who meet these conditions are considered disabled and entitled to protection from employment discrimination under state and federal law. Under the New York Human Rights Law, employers and prospective employers must consider requests for reasonable accommodation made by individuals covered by the law, otherwise known as the “protected class.”

Employers need not grant a request that would impose an undue hardship on the employer, but they must “engage in an interactive process” with the employee to determine whether there is a reasonable accommodation that would enable the employee to perform the essential functions of the job. The reasonable accommodation requirement is intended to balance the interests of both the employee and the employer.

Nothing requires an employer to retain an employee who cannot do the job, uses medical marijuana in the workplace or comes to work impaired. An employer also need not accommodate legal drug use if, as in the case of federal contractors or those in the long-haul trucking industry, that accommodation would put the employer in violation of federal law or cause it to lose a federal contract or funding.

 

Drug Testing Employees

This is where it gets complicated. In general, New York does not limit an employer’s right to test employees for drug use. This includes random drug testing, testing on the suspicion of impairment or universal testing intended to enforce a zero-tolerance policy. So what will happen to certified medical marijuana patients who, like Brandon Coats, show no signs of impairment, but test positive for marijuana?

The law is actually silent on this point, but it would be hard to reconcile disciplinary action based on testing that is not the result of suspicions of impairment and the requirement of reasonable accommodation for those in a protected class. New York employers who are trying to be proactive in meeting this issue have likely already begun revising their testing policies and internal guidelines.

 

The Americans with Disabilities Act

The federal ADA, of course, does not recognize medical marijuana patients as a protected class when it comes to employment discrimination. State and local laws may be more protective of employees but never be less so.

The potential for conflict arises not in the definition of the protected class, but in the process of weighing whether a request for accommodation is reasonable or whether it imposes an undue hardship on the employer. It is conceivable that an employer might take the position that any request to accommodate use of a Schedule I drug is unreasonable, per se. This is an issue that is likely to play out in litigation.

Overall, though, New York’s Compassionate Care Act appears to give medical marijuana patients greater protection from discriminatory termination. Not all of the issues can be resolved prior to the law’s implementation, but it seems like a step toward resolving an issue that may have unfairly excluded some workers from participation in economic life.

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