Article contributed by Mitchell F. Borger and Nicole M. Vescova, Ellenoff Grossman & Schole LLP
Over the past few years, the legalization of marijuana has clouded ballots and elections across the country. Some states have gone completely “green,” legalizing the recreational use of marijuana. Other states permit the use of marijuana only for medical purposes. A majority of the states have decriminalized marijuana, while under federal law it remains illegal.
With so many different laws related to this marijuana reform movement, how is an employer in New York supposed to comply?
Under the Compassionate Care Act of 2014 (“CCA”), the use of medical marijuana is legal in New York. The CCA also provides protections from discrimination in the employment context to certified medical marijuana patients. Accordingly, New York employers are prohibited from discriminating against an employee in the terms and conditions of employment, or firing or refusing to hire an employee, based on that employee’s status as a patient who is certified under New York law to use medical marijuana.
In fact, under the New York State Human Rights Law, certified medical marijuana patients are considered disabled. Thus, employers must engage in the interactive process and provide reasonable accommodations to those employees certified to use medical marijuana.
Notably, the Act specifically permits employers to restrict employees from performing their duties while under the influence of marijuana, even when it is medically prescribed. Therefore, employers can implement drug and alcohol policies prohibiting employees from working under the influence of any substance. Further, employers who work with the federal government are not required to permit the use of medical marijuana where it would cause that employer to lose a federal contract or funding.
Beginning May 10, 2020, New York City employers are prohibited from conducting pre-employment drug testing for marijuana or tetrahydrocannabinol (“THC”) on most employees. Pre-employment marijuana testing is still permitted:
- For certain safety and security sensitive jobs such as construction workers; police officers; commercial drivers; teachers, teachers’ aides or day care center employees; any job that requires the supervision or care of patients in a medical, nursing, home or group care facility; or any job that has the potential to significantly impact the health or safety of employees or members of the job; and
- For jobs with employers hiring under a federal contract or grant that requires pre-employment drug testing.
Importantly, employers should note this law has no impact on their right to drug-test current employees. If an employer reasonably suspects an employee is working under the influence, they may ask the employee to stop working and question the employee. Employers should document the employee’s conduct which is consistent with working under the influence. If such conduct meets the threshold requirements under the company’s drug testing policies, a drug test may be
Unfortunately, because marijuana stays present in an individual’s body for a significantly longer period of time than alcohol, testing positive for marijuana is not conclusory evidence that the employee was in fact under the influence in the workplace. Consequently, terminating an employee solely on the results of a positive marijuana test will likely expose employers to unlawful termination claims and/or discrimination claims if the individual is a certified medical marijuana patient. Further, if recreational marijuana becomes legalized in New York, employees may have additional protections under Section 201-d of the New York Labor Law. Under the “Legal Activities” Law, it is unlawful for employers to take adverse employment action against an employee for their legal use of consumable products outside of the workplace. If marijuana becomes a legal product for consumption, it is reasonable to expect that such activity will be protected under Section 201-d.
By having contemporaneous written documentation of an employee’s conduct that was consistent with being under the influence, employers face less risk by terminating an employee who tests positive for marijuana.
Occupational Safety Hazards
The Occupational Safety and Health Act (“OSHA”) requires most private sector employers to abide by certain standards to ensure a safe and healthy working environment for its employees. Under OSHA’s General Duty Clause, employers have a legal responsibility to protect their employees from workplace illnesses or injuries, and are required to furnish a place of employment which is free from recognized hazards that are likely to cause death or serious physical harm to its employees.
While OSHA does not prohibit the use of marijuana in the workplace, an employer’s knowing tolerance of such may create an impermissibly hazardous work environment in violation of the General Duty Clause. For example, consider a restaurateur who tolerates his line cook being under the influence of marijuana while in close quarters with other kitchen staff, open flames and sharp knives. The restaurateur will be hard pressed to prove they furnished a place of employment free from recognized hazards when its line cook is subject to side effects of marijuana that may include impaired thinking and decreased alertness.
What Should Employers Do Now?
The impact of the medical marijuana reform and related laws in the workplace will vary widely from employer to employer. However, there are proactive steps employers across all industries should take now, which include:
- Adopt a clearly written drug and alcohol policy that explicitly states that working under the influence of any substance, including medical marijuana, will not be tolerated.
- Engage in the interactive process with employees who are certified medical marijuana patients and train management on their protected status.
- If pre-employment drug testing is conducted, confer with drug testing vendors to ensure that marijuana is omitted from the range of substances tested.
- If your organization operates restaurants in other states, consult with employment counsel to determine whether those states’ laws have different requirements regarding marijuana in the workplace.
- Be prepared for more changes as it is relatively likely that New York will legalize the recreational use of marijuana in the coming years.
Mitchell F. Borger is a Partner in the Labor and Employment group of Ellenoff Grossman & Schole LLP (“EGS”) and has more than twenty-seven years of experience practicing Employment Law. Mr. Borger advises clients about their legal rights and responsibilities, drafts employment agreements, severance and release documents, handbooks, and policies, is well versed in alternative dispute resolution (with an emphasis on mediation and arbitration programs), and performs employment-related corporate due diligence. Mr. Borger is current chair of the New York State Bar Association’s (“NYSBA”) Corporate Counsel Section, served as its 2005 Chair and is a twenty-year member of its Executive Committee.
Nicole M. Vescova is an Associate in the Labor and Employment Practice Group. Ms. Vescova represents and advises clients in a variety of labor and employment matters, including workplace issues such as proper pay practice, employee classification, discipline, termination, and leave. Ms. Vescova drafts various employment policies and agreements such as company handbooks, commission agreements, and non-competition and non-disclosure agreements. She also defends employers against wage & hour claims, and discrimination & harassment claims.