Medical Marijuana in New York. What does that Mean for Employers?
There is now medical marijuana in New York. Its a brave new world, and we are here to help you navigate this evolving legal landscape as the state rolls out legal pot.
First, a bit of background. The New York Compassionate Care Act was signed into law by New York State Governor Andrew Cuomo on July 7, 2014, making New York the 23rd state in the U.S. to legalize medical marijuana. The new law permits certified patients to use marijuana for treatment of a “serious condition” so long as the treatment is prescribed by a certified physician. The law took effect January 2016. An overview of the new law can be found here.
Every employer should take this change in the laws as an opportunity to reevaluate their employment policies and consider how it wants to deal with the legal medicinal use of marijuana by their employees. As we at LeFebvre Law often advise our clients with most employment issues, your first line of defense is a well-drafted policy to minimize your company’s liability and ensure your employees are fully aware of how your company will handle this new issue. You want to make sure you and your employees are all on the same page.
What is important to remember is that the Compassionate Care Act creates new anti-discrimination protections for medical marijuana users. The Compassionate Care Act provides that certified patients shall not be subject to “disciplinary action by a business” for exercising their rights to use medical marijuana. Importantly, the Act further states that being a certified patient is the equivalent of having a disability for purposes of New York’s anti-disability discrimination laws. As such, if an employer fires or otherwise disciplines an employee for using marijuana legally under the Compassionate Care Act, the employee may likely have a claim for discrimination against his or her employer under the New York State Human Rights Law (NYSHRL).
As the Compassionate Care Act offers protections to medical marijuana users, employers may need to offer reasonable accommodations to employees who use cannabis as certified patients, as per the requirements of the NYSHRL. Because the Act designates certified patients as disabled, certified patients are entitled to the same disability accommodations as any other disabled employee. As long as the employee can continue to perform the essential duties of the job, and the employer is on notice as to the employee’s “disability,” the employer may very likely be required to offer reasonable accommodations to that employee, just as one would for a person in a wheelchair. What these types of accommodations will look like will depend on the specific situation, such as the employer’s business, the details of the employee’s need for medical marijuana, essential duties of the job, and so on.
While employers are prohibited from discriminating against medical marijuana users and will likely be required to provide reasonable accommodations, the law does allow employers to provide and enforce company policies “prohibiting an employee from performing his or her employment duties while impaired by a controlled substance.” This is important because, while the Compassionate Care Act seeks to give qualifying patients access to an important drug, the law also considers the interests of businesses, which for obvious reasons may not want their employees impaired on the job. As such, employers cannot treat their employees differently simply because they use medical marijuana, but they may prohibit their employees from working while impaired.
What if, you may ask, my employee makes a request for a reasonable accommodation that involves consuming marijuana at the work place? This is an issue that has yet to be resolved, but it is worth noting that the law expressly prohibits consuming marijuana in a “public place.” Depending upon how the Commissioner of Health defines the meaning of “public place,” the prohibition on public use of marijuana may ensure that employers will not need to permit marijuana consumption at the work-site as a reasonable accommodation. Additionally, it should be noted that the Compassionate Care Act does not provide smokable marijuana – rather, the marijuana obtained through the program will be consumed by other means, such as edibles, extracts, tinctures and oils.
So hopefully this has been of some help to any small business owners daunted by this new change in public policy. We at LeFebvre Law are interested in advising our clients about this changing legal landscape and how it may impact their businesses. Contact LeFebvre Law if you would like to discuss your options for updating your policies with regards to medical marijuana or if you have any further questions on the topic.
Tim LeFebvre, Esq.