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Home / Expert Opinion / Labor and Employment: Medical Marijuana – A Potentially Sticky Situation for Employers?

Labor and Employment: Medical Marijuana – A Potentially Sticky Situation for Employers?

This summer, New York State passed the Compassionate Care Act (Public Health Law § 3360 et seq.), becoming the 23rd state to permit the use of marijuana for medical purposes. The Compassionate Care Act allows qualifying patients who suffer from a serious condition, such as cancer, HIV infection, Parkinson’s disease, multiple sclerosis, epilepsy or chronic pain, to possess up to a 30-day supply of non-smokable marijuana.Sheldon,-Pat

Full implementation of the Compassionate Care Act will take time, however, the Department of Health must begin issuing identification cards to qualifying patients “as soon as practicable” – possibly by the end of 2015 (Public Health Law §§ 3363, 3369-b). The decriminalization of medical marijuana may soon present a new challenge to an employer’s ability to enforce its drug policies and navigate the related employment laws.

Notably, the Americans with Disabilities Act will provide no protection to employees in New York (or any state) who are medical marijuana users. Instead, the use of marijuana remains illegal under federal law (i.e., even if it is lawful under an applicable state law). Indeed, the ADA expressly excludes current users of illegal drugs from protection against employment discrimination.

To complicate things, medical marijuana users will enjoy limited protection under New York’s equal opportunity law. The Compassionate Care Act contains a nondiscrimination clause (Public Health Law § 3369) providing that certified medical marijuana patients are deemed to have a “disability” within the meaning of the New York Human Rights Law, thus protecting such persons against discrimination in employment.

But the same clause also protects the employer, which may continue to “enforce[] … a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance.” The nondiscrimination clause attempts to balance the patient’s right to seek appropriate medical treatment with the employer’s right to maintain a drug-free workplace.

An analogy may be drawn to the very limited protection that persons who suffer from alcohol dependency enjoy under federal and state disability discrimination laws. To be sure, there are differences between persons suffering from terminal and debilitating illness, and persons who abuse alcohol. It is well established, however, that alcohol dependency is a protected disability under both the ADA and the Human Rights Law.

But an employer may still prohibit employees from being under the influence of drugs or alcohol while on the job and may test employees for the presence of drugs or alcohol to effect such a policy. Further, a number of courts have held that an employer does not discriminate unlawfully by testing persons identified as former substance abusers with greater frequency than other employees. Accordingly, an employer may lawfully terminate employees who are discovered to be under the influence of drugs or alcohol at work regardless of an employee’s status as a disabled person.

Moreover, the ADA and Human Rights Law do not protect persons with alcohol dependency from the consequences of their own workplace misconduct. The ADA expressly excludes persons with alcohol dependency whose current use of alcohol prevents him or her from performing the duties of the job.

Accordingly, an employer is not required to accommodate absenteeism attributable to alcohol dependency. Nonetheless, it is unclear whether the Human Rights Law protects certified medical marijuana patients from termination based on absenteeism or other misconduct attributable to their disability.

Opinions from courts in jurisdictions that have existing medical marijuana programs have not been receptive to arguments that medical marijuana patients are exempt from an employer’s drug policies.

The California Supreme Court did not consider the issue until 12 years after California became the first state in the nation to enact medical marijuana legislation. The plaintiff in Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008), a man who used marijuana pursuant to state law to treat chronic pain, contended that he suffered from a physical disability and was thus protected against employment discrimination under the Fair Employment and Housing Act – California’s analog to the New York Human Rights Law.

The court rejected that contention, and commented that “[t]he point [was] perhaps too obvious to have generated appellate litigation” over the preceding 12 years, Id. at 204. But the Compassionate Care Act is unlike California’s medical marijuana law in at least one important respect. As noted, the Compassionate Care Act expressly provides that certified patients enjoy protection as disabled persons under the Human Rights Law.

The medical marijuana law in Washington, like its counterpart in New York, contains a provision addressing the duties of an employer, if only briefly. The Washington law provides, “Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment[.],” Wash. Rev. Code § 69.51A.060(4).

The Washington Supreme Court addressed this provision in Roe v. Teletech Customer Care Management (Colorado) LLC, 257 P.3d 586 (Wash. 2011). The employer in that case (Teletech) offered the plaintiff a job contingent on her passing a routine drug test, knowing that she was a medical marijuana patient.  After she tested positive for marijuana use, Teletech revoked the offer of employment.

The plaintiff contended that the statute implicitly required Teletech to accommodate her lawful use of medical marijuana outside the workplace. The court rejected that contention and upheld the employer’s policy maintaining a drug-free workplace.

An employer in New York would be wise to tread lightly in Teletech’s position. Although the statute explicitly permits an employer to enforce a policy prohibiting employees from performing their job duties while under the influence of a controlled substance, the inconsistent application of that policy against card-carrying medical marijuana users may give rise to a discrimination claim.

The medical marijuana law in Colorado similarly provides, “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place,” Colo. Const. art. XVIII § 14(10)(b)(2013).

The Colorado Court of Appeals addressed this provision in Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. 2013). The plaintiff in that case was a quadriplegic who used marijuana outside of the workplace to treat seizures. Dish Network fired him after a drug test showed that he was under the influence of marijuana while at work. The court, again, upheld the employer’s policy prohibiting employees from being under the influence of drugs in the workplace.

It should be noted that the Colorado Supreme Court granted certiorari in this case and heard oral argument this past September. Based on the arguments from the attorneys and the questions from the court, it seems that any reversal would be based on employment law peculiar to Colorado and would have little predictive quality with respect to how a New York court will likely interpret the Compassionate Care Act.

Employers should know that the Compassionate Care Act allows them to maintain a drug-free workplace so long as they take action pursuant to a uniform policy that is consistently applied in a nondiscriminatory manner. This does not mean that medical marijuana patients may be summarily turned away at the door, but the law grants such patients no more right than anyone else to be under the influence of drugs while on the job.

Patrick A. Sheldon is an associate at Phillips Lytle LLP. A member of the Litigation Practice Group and its Labor & Employment Practice Team, he focuses his practice on trial, appellate and administrative litigation, with a particular emphasis on labor and employment matters, as well as general civil and commercial litigation. He can be reached at psheldon@phillipslytle.com or (716) 504-5753.