Medical Marijuana and Employment

What is the Compassionate Care Act (CCA)?

New York State passed the Compassionate Care Act in 2014 which became effective in 2016.

The New York State Department of Health states “[T]he purpose of the Compassionate Care Act is to comprehensively regulate the manufacture, sale and use of medical marijuana while striking the right balance between potentially relieving the pain and suffering of those in desperate need of a treatment and protecting the public against risks to its health and safety.”

Since the law was passed, the list of serious medical conditions for which medical marijuana may be prescribed has been expanded adding chronic pain, post-traumatic stress disorder, and any condition for which opioids may be prescribed. Nurse practitioners and physicians’ assistants are now authorized to certify a patient for medical marijuana use. New York allows registered organizations to deliver medical marijuana supplies directly to the patient’s home. Patients can also find a list of registered practitioners on the New York State Department of Health website. The Department of Health has also provided photo identification registration cards to patient’s to allow quicker and easier access to use of medical marijuana as prescribed by their physicians.

Every change and addition to the Compassionate Care Act has been made to allow easier and quicker access to medical marijuana to residents of New York. And the Department of Health continues to track the program to ensure that the program continues to expand and develop, keeping in mind that New York is working its way towards legalizing recreational marijuana.

How does the Compassionate Care Act and the use of medical marijuana affect employment?

To comply with CCA and be prescribed medical marijuana, a patient must first register to be a “certified patient” with the New York State Department of Health. This can be done by completing the online application on the Department of Health’s website. Pursuant to the CCA if a person is a “certified patient” that person is deemed to have a disability and is therefore entitled to the protections under New York State and Federal law which prohibits discrimination based upon disability. Furthermore, prohibited disability discrimination includes any actions or inactions which effectively deny disabled people equal access to services, opportunities or benefits that are available to those without disabilities.

Pursuant to the CCA, any person who is a “certified patient” with the Department of Health is protected from wrongful termination by their employer. However, there are two exceptions to this provision under the CCA:

  1. An employer is legally authorized to prohibit their employees from using or being

under the influence of marijuana while on the job; and

  1. An employer is not required to do any act that would put the employer in violation of

federal law or cause it to lose a federal contract or federal funding.

Looking at the first exception, the employer is permitted to enact policies which prohibit employees from using medical marijuana while “on the job” or during “working hours.” An employer is also legally permitted to terminate an employee who fails to abide by said policy. This can be difficult to prove because marijuana remains in a person’s system for weeks after use and the employer may not be able to determine whether medical marijuana was used by an employee before, during or after working hours. Employers will want to act with caution in terminating an employee on this basis and will need to rely upon evidence other than a positive drug test.

Under the second exception listed above, an employer may legally terminate an employee if the employee’s actions would cause the employer to be in violation of federal law.

How does this arise in the workplace?

The most likely scenario pertains to employees who are required to carry firearms in their employment. Pursuant to Federal firearms law it is illegal for any person to purchase, possess or use firearms or ammunition if that person is using a controlled substance. Under the federal Controlled Substances Act marijuana is considered a Schedule I controlled substance. If an employee is a certified patient and uses medical marijuana and is required to carry a firearm for their position, that employee is technically violating federal law even though New York State has made the use of medical marijuana legal. Because of this, an employer may legally terminate employment for an employee who is using medical marijuana and is carrying a firearm as part of their job duties.

Under the CCA, other New York State and Federal law, the employer is also prohibited from refusing to hire a person because that person uses medical marijuana. An employer may legally require the candidate for employment to submit to a drug test. However, the results of the drug test are not reliable for pinpointing exactly when marijuana was used. Meaning, marijuana remains in the body and will test positive for weeks after use. An employer cannot rely on the results of a positive marijuana test to deny employment opportunities to those certified to use medical marijuana.

What happens going forward?

While the CCA has been in effect since 2016, it is still considered a very new area of law. So much so that the above issues have been rarely litigated to a conclusion in New York State.

The employment attorneys at Melvin & Melvin will continue to monitor developments in this area and are prepared to assist you in navigating the emerging and difficult issues presented by state medical marijuana legislation and the associated conflicts with federal law.

For more information call our offices at 315.422.1311 or to contact an attorney directly click here.

Written by Erin M. Tyreman, Esq.