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On July 7, 2014, New York Governor Andrew Cuomo signed into law the New York Compassionate Care Act, N.Y. State Senate Bill S07923, N.Y. State Assembly Bill A06357E (the “NYCCA” or the “Act”), which, effective immediately, legalizes and comprehensively regulates the manufacture, sale and use of medical marijuana in New York State, also authorizing as many as five manufacturers and 20 dispensaries in the State to grow and sell marijuana.
Most significantly for employers in New York, the new legislation contains a nondiscrimination provision. The Act’s nondiscrimination provision 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.
The 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, because of the individual’s status as a patient who is certified to use medical marijuana.
Notable Take-Aways for Employers
Under the NYCCA, an employer in New York may not fire or otherwise discipline a worker who is certified to use medical marijuana merely because that worker ingests medical marijuana on the job. To the contrary, and unless an employer can demonstrate that provision of such accommodations imposes an “undue hardship” on the employer’s business, program or enterprise, see N.Y. Exec. Law 296(3)(b), an employer must reasonably accommodate the use of medical marijuana in the workplace by a worker whom the employer knows is certified to use the drug.
With that being said, in New York, a non-governmental employer lawfully may conduct random or suspicionless drug testing of its workers. And despite the NYCCA, a company in the private sector lawfully may relieve of employment duties, for the duration of the impairment, employees who test “impaired” for medical marijuana. The Act does not make clear whether a non-governmental employer may fire a worker, who is certified to use medical marijuana, for being “impaired” by medical marijuana on the job.
It is unclear, and the Act does not specify, how an employer permissibly may determine whether a worker, who is certified to use medical marijuana, is “impaired” by medical marijuana in the workplace. This ambiguity exists because medical research suggests that one cannot predict the extent to which a marijuana user is impaired based on blood THC [Tetrahydrocannabinol] concentrations alone.
The above article is an excerpt featured on the LexisNexis® Legal Newsroom | Labor & Employment Law Blog.
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