In July of 2014, Governor Cuomo signed the Compassionate Care Act (“CCA”) authorizing the manufacture, sale and use of medical marijuana within New York State. The CCA has created a potential issue for those employers who conduct drug testing or otherwise have a written policy against the use of recreational drugs. The open question is whether an employer can refuse to hire or terminate an employee who is using medical marijuana.
Although New York and numerous other States have legalized the use of medical marijuana, it is still a violation of the federal Controlled Substances Act (“CSA”) to possess marijuana, even with a medical marijuana certification. This conflict of laws triggers the doctrine of preemption (which requires that state statutes be interpreted consistently with federal law). Under the preemption doctrine, an employee who fails a drug test could generally be terminated for misconduct, notwithstanding that the state in which the employee works has legalized medical marijuana and that the employee has been medically cleared to use the same. In fact, several cases from other states have upheld such termination.
However, many users of medical marijuana claim they do so because of a legally recognizable “disability” and that they should not be penalized for doing so. Since under federal law (and some state statutes) the employer is required to make “reasonable accommodations” for a disabled employee, they argue employers should allow use of medical marijuana as such a reasonable accommodation. Although there are no New York cases addressing this issue since the CCA was enacted, several other states which enacted statutes legalizing medical marijuana prior to 2014have addressed this issue and their reasoning may be relevant to how future New York cases will be decided.
Other states have said that an employer’s obligation to reasonably accommodate an employee with a disability is not obviated by the fact that that person is using medical marijuana to treat the same. In determining whether an employee who failed a drug test should be terminated, the courts in Connecticut, California and Colorado relied upon whether the statute legalizing marijuana or the company policy involved made specific provision for persons with disabilities. In those cases where it did, the courts have either flat out found in favor of the employee or have required the employers to address the disability issue as permitting the use of medical marijuana since it may be the only reasonable accommodation available. For example, in a recent Connecticut case, the Second Circuit Court of Appeals (which also covers New York) found that Connecticut’s medical marijuana law contained an anti-discrimination provision and was not in direct conflict with the federal CSA. The Court decided that the employer, by rescinding an offer of employment because cannabis was detected in the prospective employee’s pre-employment drug test, had violated the anti-discrimination provision in the Connecticut law.
Similarly, in a recent administrative proceeding, the Taxi & Limousine Commission in New York claimed that a driver who had failed an annual drug test was unfit to retain his license. An Administrative Law Judge disagreed, finding that the driver, who held a valid medical marijuana certification, was not unfit because the positive result did not arise from “illegal drug use” as required under the relevant regulations.
These decisions show that judges are looking at the specific language of the statute or regulation in question in determining whether the use of medical marijuana warrants termination of an employee. Although these cases are not binding on New York courts, New York judges and employers can observe how the states which have legalized medical marijuana for several years have dealt with these issues.
What does that mean for New York employers? Best practice indicates they can no longer rely solely on a positive drug test to terminate an employee but must determine whether that employee may have some additional rights as a disabled person. Permitting use of medical marijuana may be a reasonable accommodation that employers cannot avoid. However, this is a complex issue so employers should consult an experienced attorney for additional guidance.
If you want to discuss your obligations as an employer or your rights as an employee, please contact one of our employment law attorneys.