Employers Dazed and Confused

New York’s legislature is considering a law that would legalize marijuana use by patients certified by their doctors as having a serious condition that should be treated with the drug.

The current version of the legislation prohibits employers from refusing to hire a candidate solely because he or she is marijuana certified. However, it also states that employers are not required to make any additional accommodations. Interpreting their obligations and rights under this law will be challenging for New York employers, as it has been for employers in the other states, which have already passed similar laws.

Federal and state laws require employers to provide reasonable accommodations to employees with legally recognized disabilities under certain conditions. For example, an employer may be required to accommodate an employee with diabetes by making an exception to the company rule prohibiting employees from keeping food or drink at workstations.

If the proposed law is passed, would a New York employer have to accommodate a disabled employee by making an exception to its drug free workplace policy, and permitting him to use medical marihuana on the job? The answer is no if New York courts use the same analysis as the Supreme Court of Oregon did in its April 2010 decision interpreting Oregon’s statute legalizing medicinal marijuana. In that case, the court held that an employer acted lawfully by terminating an employee who advised the employer of his medical use of marijuana to treat stomach problems. The court reasoned that federal law criminalizing marijuana preempts the state law. As a result, the employer was excused from any obligation to accommodate the disabled employee’s use of medical marijuana.
California and Washington courts have interpreted their states’ medical marijuana laws similarly.

So, would a New York employer have the absolute right to discipline an employee whose drug test revealed trace amounts of marijuana? Perhaps not, if the employee was certified for medical marijuana use and there was no proof he smoked before or at work. It may be a reasonable accommodation for the employer to use a drug test that measures only whether an employee is impaired at work.

And what about the employee who reveals to his employer that he is disabled and that he uses marijuana medicinally? If he is fired and can prove that his termination was due to his disability, and not his marijuana use, he may have a valid claim for disability discrimination.

Until the smoke clears, if medical marijuana is legalized in New York, employers should work closely with counsel to determine whether and how medical marijuana use must be accommodated.

ellen r. storch, esq.

Ellemn R. Storch is an employment attorney with the firm Kaufman Dolowich Voluck & Gonzo LLP. Contact her at estorch@gdvglaw.com