United States: Don't Get Lost In The Weeds: Medical Marijuana Is Now Legal In New York

Last Updated: February 1 2016
Article by Trent M. Sutton and Pamela S.C. Reynolds

On January 6, 2016, the Commissioner of Health of the State of New York certified that the medical marijuana program established by New York's Compassionate Care Act could be implemented in accordance with public health and safety interests. The next day, the first dispensaries offering medical marijuana in New York opened.

Compassionate Care Act

The Compassionate Care Act, which was signed into law in July 2014, legalizes and regulates the manufacture, sale and use of medical marijuana in New York. The Act sets forth specific conditions under which a patient may obtain medical marijuana.

  • The patient must suffer from a "severe, debilitating or life threatening condition" that is accompanied by an associated or complicating condition." The Act specifically lists 10 qualifying conditions and five qualifying associated or complicating conditions in order to be a certified patient.1
  • The patient must be certified as having the required "condition" by a physician who is registered with the New York Department of Health to certify patients under the Act.
  • A certified patient must obtain the medical marijuana from a licensed New York "medical marijuana dispensary."

The Act does not authorize the use of the marijuana plant, but only liquids manufactured by certified laboratories that are subject to quality control. At least one of the forms of marijuana that can be prescribed through the state contains only low amounts of THC, the psychoactive component for which most employer drug-free workplace programs test.

Employment Protections for Medical Marijuana Use

Like medical marijuana legislation in some other states, the Compassionate Care Act establishes employment protections for medical marijuana use. Specifically, it provides that certified patients shall not be subjected to "disciplinary action by a business" for exercising their rights to use medical marijuana. It also contains a nondiscrimination provision, which 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 ("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, based on the individual's status as a patient who is certified under state law to use medical marijuana. Additionally, businesses in New York with four or more employees must provide reasonable accommodations to employees or prospective employees who are certified to use medical marijuana.

Significantly, though, the nondiscrimination provision of the Compassionate Care Act sets forth two exceptions: (1) it "shall not bar enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance;" and (2) it "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." Accordingly, New York employers will still be able to maintain a safe workplace by restricting employees from performing their duties while under the influence of marijuana. For example, employers may still adopt and maintain reasonable policies or procedures – including drug testing – to ensure that an individual is not working while under the influence of a controlled substance (including marijuana) or engaging in the illegal use of drugs. Substance abuse prevention policies should notify employees that the use of controlled substances (including medical marijuana) is prohibited during work hours and that disciplinary action will be taken against anyone who violates that policy.

One difficulty for employers in implementing such policies is that the regulations do not define "under the influence." Unlike alcohol, the effects of medical marijuana may not be as readily apparent through observation alone and are likely to persist long-term. Such uncertainty raises the risks of litigation for employers as they try to establish objective standards on which to base an adverse employment action.

Warning: Inconsistent with Federal Law

Employers who are subject to federal regulations that require certain testing or safety precautions related to marijuana use must still abide by these regulations and may do so without violating New York law. For example, the Department of Transportation, Department of Defense, Department of Energy, and/or federal grants or contracts have regulations that impact marijuana use. New York's Compassionate Care Act does not require an employer to take any act that would put the employer in violation of such laws or cause it to lose a federal contract or funding, so employers would not, for example, have to employ a medical marijuana user in a role that prohibited such use as a matter of law.

In the wake of legislation passed in other states legalizing the use of marijuana for medical use, the U.S. Department of Justice has made clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce that statute.


Under the NYSHRL, employers have an obligation to accommodate individuals with disabilities. Accordingly, employers will need to be mindful of legal obligations to engage in an interactive dialogue with employees who are certified patients under the Act and, where possible, reasonably accommodate employees with respect to underlying medical conditions. The accommodation strategies will need to include considerations of an employer's obligation to maintain a safe work environment. Under the Americans with Disabilities Act, permitting the use of a drug made illegal under federal law is not a reasonable accommodation, but New York's law appears to reach further. Bear in mind that New York law does not require an employer to accommodate a medical marijuana user by allowing the user to carry marijuana onto work property or to use it on work premises. An employer should be careful not to implement accommodations that are affirmatively illegal as a matter of federal law. Stated otherwise, accommodating the user, but not the use, is advised. Nevertheless, it may be difficult to navigate between federal and state law, particularly as to employees who hold safety-sensitive jobs but who are not subject to federal bars on marijuana use. For these reasons, some employers may wish to continue to reject medical marijuana as an excuse for a positive test result. If they choose to take this position, however, they may become the subject of a "test case" seeking to clarify the limits of the Compassionate Care Act where inconsistent with federal law.

Next Steps

New York employers concerned about compliance with the Compassionate Care Act should be proactive. We recommend the following:

  • Get (and stay) informed of an employer's obligations with regard to medical marijuana.
  • Evaluate the issues raised by this law in context of your workplace and the obligations your company has in light of other federal regulations and contracts.
  • Educate managers on their obligations.
  • Implement, revise, and/or update your drug free workplace policy.


1 The law identifies the following conditions: Cancer; HIV infection or AIDS; Amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease; Parkinson's disease; Multiple sclerosis; Spinal cord injury with spasticity; Epilepsy; Inflammatory bowel disease; Neuropathy; and Huntington's disease. The associated or complicating conditions are: Cachexia or wasting syndrome; Severe or chronic pain; Severe nausea; Seizures; or Severe or persistent muscle spasms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Trent M. Sutton
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.