In July 2014, Governor Cuomo signed New York’s Compassionate Care Act, which legalizes and regulates the manufacture, sale, and use of medical marijuana in New York. Of relevance to employers, and discussed below, New York is one of only a few states that deems covered individuals (“certified patients”) to be “disabled” categorically under the state human rights laws. To be covered, individuals must suffer from a “serious condition,” defined currently as having one of the following “severe debilitating or life-threatening conditions” (which the legislature has concluded is likely to respond favorably to the therapeutic or palliative benefits of marijuana):
· Cancer
· HIV/AIDS
· Amyotrophic lateral sclerosis (ALS)
· Parkinson's disease
· Multiple sclerosis (MS)
· Damage to the nervous tissue of the spinal cord with neurological indications of intractable spasticity
· Epilepsy
· Inflammatory bowel disease
· Neuropathies
· Huntington’s disease
Individuals must be experiencing specific symptoms of a covered condition in order to be deemed to have a “serious condition.” Individuals deemed to be “certified patients” (or their designated caregivers) can obtain a maximum of 30 days’ supply of marijuana (in a dosage determined by agency rulemaking or a certified physician) at a time, with refills permitted one week before the supply runs out. The Act does not authorize the use of the marijuana plant, but only liquids manufactured by the certified laboratories that are subject to quality control. Marijuana can only be possessed in its original packaging (except when being used), and it cannot be smoked, consumed, vaporized, or grown in a public place. Moreover, smoking is not considered a certified or lawful medical use under any circumstances.
Like medical marijuana legislation in some other states, the Act establishes employment protections for medical marijuana use. Specifically, it provides that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. It also contains a nondiscrimination provision, which states that being a patient for whom a doctor in New York State has prescribed medical marijuana is a “disability” under the New York State Human Rights Law (NYSHRL). As a result, employers in New York State with four or more employees are prohibited from firing or refusing to hire an individual, and from discriminating against an individual in compensation or in the terms and conditions of employment, based on the individual’s status as a patient who is certified under state law to use medical marijuana. Additionally, businesses in New York with four or more employees must engage in an interactive process and provide reasonable accommodations to employees or prospective employees who are certified to use medical marijuana.
Significantly, though, the law does not prohibit employers from creating or enforcing existing policies that prohibit employees from performing their employment duties while impaired by medical marijuana. The law will, nonetheless, create challenges for employers as it relates to drug testing policies since (1) at least one of the forms of marijuana that can be prescribed through the state contains only low amounts of THC, the psychoactive component for which most employer drug-free workplace programs test and (2) it is unclear whether an employer must excuse or accommodate a positive drug test where the employee is a certified patient taking marijuana in approved forms. The law will also create difficulty for employers in implementing such policies because the regulations do not define “under the influence.” Unlike alcohol, the effects of medical marijuana may not be as readily apparent through observation alone and are likely to persist long-term.
Practical Impact
It would seem appropriate for an employer who has “reasonable suspicion” that an employee is under the influence of drugs at work to test that employee and if there is a positive test result for marijuana, to take disciplinary action, even if the employee is a certified patient with a valid medical marijuana card. It is important that the basis for the suspicion be documented carefully and contemporaneously. In order to treat all employees consistently, the employer may wish to take the position that a positive test result – coupled with the employee’s behaviors leading to the “reasonable suspicion” determination – form a sufficient basis for taking disciplinary action. The marijuana test results should be based on cutoff levels no less than those prescribed for testing by the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services, and the U.S. Department of Transportation (49 C.F.R. Part 40). However, the law is silent as to whether a positive drug test, conducted after a “reasonable suspicion” determination, would provide an appropriate basis to conclude that the employee was impaired by medical cannabis while performing his or her job duties.
New York’s law provides that an employer may not discriminate against an employee solely on the basis of the employee’s status as a certified patient. If an employee comes forward and voluntarily discloses that he or she is a “medical marijuana” cardholder, the employer should engage in an “interactive dialogue” with the employee and make an “individualized assessment” as to how the employee’s marijuana use will impact his or her ability to perform job duties safely. Such an assessment may require a physical examination by a physician, particularly for a safety-sensitive employee. Furthermore, in New York, the employer should have the Medical Review Officer (MRO) report to the employer whether the employee presented a medical marijuana card (as opposed to verifying the result as an automatic negative), so that the employer may then make a determination as to how it wants to proceed.
Medical Marijuana and Random Testing
If the employer chooses to comply with New York’s “medical marijuana” law, it cannot discipline or discharge an employee for testing positive for marijuana on a random drug test if the employee produces a valid “medical marijuana” card (as a positive test result on a random drug test would be insufficient to show the employee was impaired by marijuana on employer premises or during the hours of employment). The employer might find compliance with the law untenable for safety-sensitive positions. Assuming the employer is not exempt, if an employee discloses he or she is a “medical marijuana” cardholder after (or before) a random drug test, the employer should engage in an “interactive dialogue” with the employee and make an “individualized assessment” as to how the employee’s marijuana use will impact his or her ability to perform his or her job duties safely. Such an assessment may require a physical examination by a physician. Further, like results from reasonable suspicion drug tests, the employer should have the MRO report to the employer whether the employee presented a medical marijuana card (as opposed to verifying the result as an automatic negative), so that the employer may then make a determination as to how it wants to proceed.
Applicants
The law prohibits an employer from refusing to hire an applicant because of his/her status as a qualifying patient. Assuming that the employer is not exempt (see below) the employer is left with a difficult choice. It must decide whether: (1) it will risk disregarding New York law because marijuana remains illegal under federal law and state law cannot require that it be accommodated, and therefore, it still is appropriate for employers to prohibit its use, possession, etc., and to take disciplinary action against those who test positive for marijuana; or, (2) comply with the New York “medical marijuana” law.
Compliance with the law would mean that if an applicant tests positive for marijuana, but produces a valid “medical marijuana” card to explain the positive test result, the employer could not refuse to hire the applicant (because it is difficult to see how the employer could show that an applicant was impaired by medical marijuana while performing the duties of a job the applicant has not yet begun). The employer may find compliance with the law to be untenable if it hires applicants for “safety-sensitive” positions. Until there is additional guidance, our recommendation is that employers follow state law unless they are exempt.
Exemptions
Employers need not comply with the New York law if compliance would cause the employer to violate federal law or lose a monetary or licensed related benefit under federal law or regulations. This is good news for employers who are subject to federal regulations, as they may still abide by these regulations and may do so without violating New York law. Indeed, marijuana remains an illegal drug under the Controlled Substances Act and the U.S. Department of Justice has made clear that federal prosecutors will continue to aggressively enforce that statute.
As always, please contact your Human Resources Business partner if you have any questions.