The use of medical cannabis is legal in New York state. In 2016, the Compassionate Care Act became law. This law allows residents of New York to purchase and use medical marijuana legally. Unfortunately, not all employers have updated their policies to reflect the new law. These employment laws are often complex.
Have you been terminated from a job because of medical marijuana use? If so, you might have a right to a remedy. At Lipsky Lowe LLP, we focus our law firm entirely on employment law issues. We are committed to helping our clients fight for their rights as employees. If you are an employee and you’ve experienced adverse consequences for your legal use of medical marijuana, we can help. Contact our New York employment law firm as soon as possible to schedule your initial consultation.
Recreational Marijuana Is Now Legal in New York
In 2014, New York State enacted the Compassionate Care Act, which legalized medical marijuana use. In 2018, the Governor of New York, Andrew Cuomo, and the Mayor of New York City, Bill de Blasio, released reports related to the benefits of regulated recreational marijuana use. The reports determined that the benefits of a well-regulated recreational marijuana market outweigh any potentially harmful aspects.
New York City Employers Cannot Test Job Applicants for Marijuana Use
As many New York legislatures push to legalize recreational use of marijuana, New York City is actively protecting recreational and medical marijuana users. New York City recently enacted a law that prohibits employers from certain types of marijuana drug testing. The new regulation, 1445-A, goes into effect on May 10, 2020. Regulation 1445-A amends the Administrative Code of the City of New York to add new definitions for the words “marijuana” and “tetrahydrocannabinols” (TCH) to reflect the public health law.
The second part of the new regulations adds a new subdivision regarding pre-employment marijuana testing. Requiring potential new hires to submit to drug testing to detect the presence of marijuana or THC will be illegal. Drug testing for marijuana use will be considered an unlawful discriminatory practice for employers, employment agencies, agents, and labor organizations.
New York City Employers Should Review Their Policies Related to Medical Marijuana
Many employers have not updated their employee handbooks or policies in light of the legalization of medical marijuana use. Now, employers will also need to update the following human resources documents to reflect this change in policy:
- Employment applications
- Job offer letters
- Any other documents related to pre-employment drug testing
Exceptions for Pre-Employment Marijuana Drug Screening
Potential employees who use medical marijuana will be relieved to know that employers cannot test them for marijuana use as part of pre-employment screening. However, there are exceptions to the general rule. Employers can still screen the following employees for potential marijuana use:
- Police officers
- Positions requiring OSHA 10 training to work on a construction site
- Positions requiring a commercial driver’s license
- Positions involving the care of children, medical patients, or vulnerable people
- Positions that may significantly impact the safety and health of other people
- Positions required by federal law to screen for marijuana use
- Positions for which any other law explicitly requires marijuana testing
Our Lawyers Stay Informed of New Cannabis Laws
This regulation is so new that the New York City Commission on Human Rights has not yet created rules to implement the new law. If you are a New York City employer with questions and concerns about the new law, Lipsky Lowe LLP can help. Our employment law firm tracks and monitors all new legislation introduced by the New York City Council and State Legislature. We stay on top of all new marijuana-related employment laws so we can advise employers and employees thoroughly.
Protection for Medical Marijuana Users Under the Compassionate Care Act
Most potential employees enjoy legal protection from marijuana testing. Additionally, many medical marijuana users enjoy protection from being terminated for marijuana use by the Compassionate Care Act. The Act states that certified employers cannot terminate or refuse to employ individuals based on their status as a certified patient.
Under the CCA, “certified patients” have a “disability” for the purposes of state anti-discrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). Under the New York State Human Rights Law (NYSHRL), employers therefore may not discriminate against an employee or job applicant on the basis of lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a).
Employers must offer reasonable accommodations to employees who are certified medical marijuana patients. In other words, employers cannot subject a certified medical marijuana patient to disciplinary action based solely on the certified medical use or manufacturing of medical marijuana. Employers who fire or discipline employees for lawfully manufacturing or consuming medical marijuana will be subject to discrimination claims or lawsuits based on discrimination.
Qualifying as a Certified Medical Marijuana patient
Only certain patients qualify as certified medical marijuana patients. The patients must have a medical diagnosis of severe, debilitating, or life-threatening medical conditions. The patient must be at least 18 years old and must reside in New York State and have a New York State Driver’s License or a State Issued Identification Card that lists the patients’ current New York address.
Since June 2020, the qualifying conditions have expanded. The initial qualifying conditions were: cancer, HIV/AIDS, ALS, Parkinson’s disease, multiple sclerosis, spinal cord damage causing spasticity, epilepsy, inflammatory bowel disease, neuropathies, and Huntington’s disease. Since original passage, these conditions have been added to the program: PTSD, opiate use disorder, and chronic pain — which is restrictively defined. In addition, the qualifying condition must also be accompanied by one or more of the following: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms, PTSD, or opioid use disorder.
A certified practitioner must evaluate the patient and diagnose the patient with one or more qualifying conditions. Additionally, the patient must successfully apply the New York State Patient Registry online form. When the state approves applications, it mails the patient a Medical Marijuana Identification Card.
Exceptions to the Compassionate Care Act
There are two key exceptions to the Compassionate Care Act. First, the law does not stop an employer from enforcing a policy prohibiting an employee from performing his or her employment duties while impaired by medical marijuana. Second, the Act does not require an employer to take any actions that would put the business or an individual in violation of federal law or lose federal funding or a federal contract.
Contact Our Experienced Medical Marijuana Lawyers Today
Are you an employer with concerns about updating your company policy to reflect recent changes in medical marijuana laws? Or, are you an employee who has faced unlawful discrimination for legal, medical marijuana use? The New York City employment law firm of Lipsky Lowe LLP can help. Contact us as soon as possible to schedule your initial consultation.