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.
The New York State Assembly had passed the medical marijuana bill several times by large majorities. The New York State Senate had passed the bill by a tally of 49 to 10.
The NYCCA authorizes doctors to prescribe marijuana to patients suffering from any of ten severely debilitating or life-threatening conditions, including cancer, HIV or AIDS, amyotropic lateral sclerosis (“ALS”) (also known as Lou Gehrig’s disease), Parkinson’s disease, multiple sclerosis, spinal cord injuries, epilepsy, inflammatory bowel disease, neuropathies, and Huntington’s disease.
Within 18 months after the Act’s enactment — that is, by January 7, 2016 — the Commissioner of Health for New York State (the “Commissioner”) must determine whether to allow physicians to prescribe marijuana to patients afflicted with five other medical conditions: Alzheimer’s disease, muscular dystrophy, dystonia, post-traumatic stress disorder, and rheumatoid arthritis.
Under the new law, the New York State Department of Health (the “Department of Health”) will authorize as many as five manufacturers and 20 dispensaries in the State to grow and sell marijuana.
Although, as stated, the NYCCA is effective immediately, the Department of Health will not authorize any manufacturers or dispensaries in New York to cultivate and sell marijuana until 18 months after the Act’s signing — that is, until January 7, 2016. Further, unless New York’s legislature reenacts it, New York’s medical marijuana law expires after seven years.
The Act prohibits patients from smoking medical marijuana. Instead, patients with a prescription for medical marijuana must ingest the drug by other means, such as by eating the drug; administering drops of the drug in liquid form; or vaporizing the drug (much as is done with e-cigarettes).
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, N.Y. Exec. Law §§ 290-301 (the “NYSHRL”).
As a 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.
So, too, in connection with a job or occupation sought or held, businesses in New York with four or more employees must provide reasonable accommodations to the known status of an employee or prospective employee as a patient who is certified to use medical marijuana.
New York’s medical marijuana law’s nondiscrimination provision contains two exceptions. First, the NYCCA’s nondiscrimination provision “shall not bar enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance.”
Second, the Act’s nondiscrimination provision “shall not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.”
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.
Reasonable accommodations to the known status of an employee or prospective employee who is certified to use medical marijuana might include (i) providing a reasonable break time for an employee to ingest medical marijuana each time such employee has need to ingest the drug and (ii) providing a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to ingest medical marijuana. Cf. Fair Labor Standards Act § 7(r), 29 U.S.C. § 207(r) (Reasonable break time for nursing mothers).
That said, in New York, a non-governmental employer lawfully may conduct random or suspicionless drug testing of its workers. Further, in New York, 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.
A Parting Thought
It’s fitting that, in the first week of July 2014, New York should enact a law affording relief to patients suffering from, among other diseases, ALS, or Lou Gehrig’s disease. This is so because July 4, 2014 was the 75th anniversary of New York Yankee great Lou Gehrig’s famed “luckiest man” speech at the original Yankee Stadium in Bronx County, New York City. Even though no complete transcript of Lou Gehrig’s heart-rending address exists, Gehrig biographer Ray Robinson calls Laruppin’ Lou’s July 4, 1939 speech “Baseball’s Gettysburg Address.”