Many companies have a drug free workplace policy which is intended to ensure a safe, healthful and productive working environment. In order to assure that employees do not violate the drug free workplace policy some companies conduct pre-employment testing, as well as periodic and random testing. What if an employee tests positive for marijuana?
Marijuana is still considered a controlled substance under the Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. However, in July 2014, New York passed the Compassionate Care Act which provides for the authorized use of marijuana for medicinal purposes by a patient who suffers from certain medical conditions and who has been certified by a registered practitioner. N.Y Pub. Health Law §3360 et. seq.
A person who is a certified patient is deemed have a “disability” under New York’s Human Rights Law. N.Y Pub. Health Law §3369. As such, it is illegal to discriminate against an employee who is a certified patient on the basis that he or she uses medical marijuana. That does not mean that an employer may not take appropriate action when the employee’s marijuana use creates a dangerous or unhealthy work environment. Indeed, the Act specifically provides that the non-discrimination provision in the law “shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance.” N.Y. Pub. Health Law §3369.2. It does mean, however, that the employer must treat the employee in the same manner as it is required to treat other employees who have a disability. This includes engaging in an interactive process with the employee and making reasonable accommodations so that the employee can perform the essential functions of his position.
A recent First Department case addressed the issue. Gordon v Consolidated Edison Inc., 190 A.D.3d 639 (1st Dep’t 2021). In that case, the plaintiff suffered from irritable bowel disease (IBD), a condition covered by the Compassionate Care Act. In early December she consulted a physician regarding her condition and whether medical marijuana would help with her IBD symptoms. She was told it could help. Without first being certified, she tried marijuana on her own and found that it did indeed help relieve her symptoms. The next day she contacted a physician registered with the State’s Medical Marijuana Program (“MMP”) and made an appointment for December 27th. In the meantime, on December 21st, the plaintiff was randomly selected for a drug test by her employer.
The plaintiff kept her appointment with the doctor and two days later was approved as a certified medical marijuana patient. That same day she learned that her drug test had come back positive for marijuana. Despite now being a certified patient, her employer terminated her employment because the drug test occurred before she had been certified and because she was a probationary employee.
The Court denied the employer’s motion for summary judgment because there were issues of fact as to whether the employer had adequately engaged in the interactive process with plaintiff to determine whether it could reasonably accommodate her status as a medical marijuana patient and whether it cut the dialogue process short because she was a probationary employee. The Court also noted that there were no allegations that the employee’s use of marijuana, either before or after certification, ever affected the quality of her work or her ability to do her job, or that she ever used marijuana in the workplace. It also found that there were questions as to whether the employer’s reasons for termination were pretextual.
In sum, an employer must treat an employee who is a certified patient for medical marijuana use in the same manner as it would treat other disabled employees who require a reasonable accommodation to perform their jobs and may not simply terminate the employee for testing positive for marijuana. Instead, the focus should be on whether the use of marijuana by an employee who is a certified patient creates a safety concern or negatively impacts on productivity and whether a reasonable accommodation can address the employer’s concerns.
On March 31, 2021, Governor Cuomo signed into law the Marijuana Regulation and Taxation Act legalizing the use of recreational marijuana. This makes New York the 15th state to do so. Among other things, the law allows adults 21 years and older to possess up to three ounces of cannabis for recreational purposes or 24 grams of concentrated forms of the drug, such as oils. Although smoking cannabis in public will be permitted wherever smoking tobacco is allowed, smoking marijuana will still not be allowed in workplaces.
This new law will create issues with respect to drug free workplace policies. While the law does not contain a provision similar to that in the Compassionate Care Act in which a certified patient is deemed have a “disability” thereby making it illegal to discriminate against an employee who is a certified patient on the basis that he or she uses medical marijuana, the legal use of marijuana creates its own issues for an employer since an employee can test positive for marijuana days after having last used the drug. While it is too early to know how the law will develop in this area, it is suggested that, with regard to disciplinary action against an employee who tests positive for marijuana use, that the employer’s focus should be on whether the employee is able to properly perform his job, and whether the use of marijuana negatively impacts on the quality of his work or productivity, creates a dangerous or unhealthy work environment, or raises safety concerns. Indeed, New York Labor Law 201-d(1)(b) specifically provides in relevant part that unless otherwise provided by law, “it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of . . . (b) an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property.”
 See Pub. Health Law §3360.7(a) for a list of the serious conditions covered by the Act.