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HR Connection: Fuzzy on NY’s medical marijuana law? You’re not alone

Frank A. Cania

Frank A. Cania

Gov. Andrew Cuomo signed the Compassionate Care Act into law on July 5, 2014, following weeks of closed-door negotiations between the governor and a number of legislators. With the signing of the act, New York became the 23rd state to enact a medical marijuana law.

However, this is not your typical, “Dr. Dude … give me a prescription so I can light up” law. In fact, many are calling it one of the most complex and restrictive medical marijuana laws in the nation. From the beginning, it’s clear this law will have much broader implications for employers, and their covered employees, than merely legalizing a substance for the treatment of specific medical conditions.

Unlike many of the laws in other states regarding the use of medical marijuana, the New York law prohibits covered individuals, referred to as “certified patients,” from smoking marijuana — opting instead for edible, vapor, pill or oil forms. In fact, Gov. Cuomo was adamant that the act prohibit the smoking of marijuana. Further, the vaporization of medical marijuana in “public places” is prohibited, regardless of a patient’s certification status.

According to the regulations promulgated by the health commissioner, the definition of a “public place” includes, but is not limited to, any location where smoking is prohibited under the public health law. For example: places of employment; public transportation, ticketing areas and terminals; child day care centers; all public and private colleges; hospitals and residential health care facilities (except by patients and in certain areas); and business facilities.

The law also prohibits vaporization within 100 feet of the entrances, exits or outdoor areas of any public or private elementary or secondary schools. In addition, consumption of any approved form of medical marijuana products (edible, vapor, pill or oil) is not permitted in any vehicle on public or private roads, in the parking area of a shopping center or in any parking lot.

Another provision that is notable for employers: Every certified patient will automatically meet the definition of “disabled” under the New York State Human Rights Law. While this provision has been given minimal publicity, the impact on New York employers will be significant because there appears to be little or no room for factual dispute or interpretation regarding the severity of the individual’s condition.

Taking things a step or two further, with any question of whether the employee is disabled already settled by the act, the employer arguably may not discriminate against a certified patient for the use of medical marijuana, and will likely be required to engage in an interactive process to determine if a reasonable accommodation should be made.

While the act was effective immediately, the state agencies involved with its rollout, most notably the New York State Department of Health, have a total of 18 months to fully implement the law. However, now that 12 of the 18 months have passed, it is important for employers to become familiar with the law and regulations in order to be prepared for its potential impact on the workplace.

Access to medical marijuana is limited to certified patients with a “serious condition.” A strict process will be used to evaluate and certify the likely therapeutic and/or palliative benefits from the use of medical marijuana. Individuals age 21 or over who suffer from a serious condition, as defined in the law — cancer, HIV/AIDS, amyotrophic lateral sclerosis (ALS), Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, epilepsy, inflammatory bowel disease, neuropathies or Huntington’s disease — will be eligible to include medical marijuana in their treatment. The act also gives the commissioner of health discretion to expand the list of serious conditions.

As mentioned previously, certified patients automatically meet the NY State Human Rights Law definition of “disabled,” and cannot be subject to “disciplinary action by a business” for exercising their rights to use medical marijuana. Further, firing or otherwise disciplining an employee based on the legal use of medical marijuana may result in a discrimination claim, or legal action against the employer.

The law attempts to balance the employee’s right to use medical marijuana with the employer’s right to prohibit “an employee from performing his or her employment duties while impaired by a controlled substance.” This is likely to be fertile ground for confusion, complaints and legal action.

With certified patients regarded as disabled, they are entitled to disability accommodations in the same manner as any other disabled employee capable of performing the essential duties of his or her job. Whether an accommodation will be necessary for an employee’s use of medical marijuana, and the types of accommodations necessary, will depend on factors such as the employer’s business, the essential duties of the job, etc. As with most other accommodation issues, the interactive process will likely be the key to defending an employer’s reasonable accommodation decisions.

Initially the act allows for no more than five private organizations licensed for the production and distribution of medical marijuana, and up to four wholly owned and operated dispensaries per organization.

This next point is one that most articles I’ve read either ignore, or gloss over. To obtain and maintain a license from New York state to grow, market and sell medical marijuana, the act requires each of the five private companies to, “enter into a labor peace (neutrality) agreement with a bona fide labor organization representing its employees.” That means the five private employers are not allowed to resist a union’s organizing activities; are required to waive all employer free speech rights and refrain from making negative comments about the union; allow workplace access for union organizing activities; and waive the right to secret ballot elections, with the results of “card checks” determining union representation.

Finally, the law does not “require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.” If an employer is required to comply with the federal Drug-free Workplace Act, or other drug testing regulations, it should continue to comply without concern.

Compliance with existing laws and regulations is especially important before the complexity of medical marijuana is introduced. To minimize the potential for a variety of compliance issues, employers should evaluate their workplace policies against applicable state and federal regulations, such as the New York State Human Rights Law and the Americans with Disabilities Act.

In addition, employers should reinforce policies prohibiting employees from working while they are under the influence or impaired. Then, as additional regulatory guidance becomes available, employers should establish policies and procedures for addressing the use of medical marijuana by employees.

Frank A. Cania, M.S.Emp.L., SPHR, SHRM-SCP, is president and managing partner of DRIVEN HR LLC, a Fairport-based human resource consulting firm providing HR audits, outsourced HR management, employee handbooks and a variety of other services. Frank concentrates on wage-and-hour, FMLA, ADA, Title VII and Form I-9 compliance, as well as workplace investigations. This article is brought to you by the Rochester affiliate of the National HR Association, a local professional HR organization focused on advancing the career development, planning and leadership of HR professionals.

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