United States: Smoking Out The Tristate Area: Employer Concerns With Local Medical Marijuana Laws

In the stoner-classic, "Cheech and Chong's Next Movie," Cheech Marin laments: "I'm gonna be late for work again. That's the fifth time this week, and it's only Tuesday, man." While Cheech's calculations remain a mystery, the prospect of employees coming to work while under the influence of marijuana presents a concerning picture for employers.  In an era where medical marijuana is legal in certain circumstances under the state laws of New York, New Jersey, and Connecticut – and with Vermont on the verge of making marijuana entirely legal – it is critical for employers to educate themselves on their rights and obligations with regard to these laws. This article provides employers in the tristate area with practical guidance on the medical marijuana laws of New York, New Jersey, and Connecticut. 

New York

Employers may remember the brief media frenzy that ensued after Andrew Cuomo signed the  Compassionate Care Act into law on July 5, 2014, which insulated certain seriously ill patients from civil and criminal penalties when using and purchasing marijuana.  The law was very restrictive relative to other states such as Colorado, where on January 1, 2014, it became " the first place anywhere in the world to allow legal marijuana sales to anybody over 21 for any purpose."1  New York's Medical Marijuana Program finally launched on January 7, 2016.  The program requires prospective patients to receive certifications from their physicians that they have a medical condition appropriate for medical marijuana, and thereafter apply for registration online with the Department of Health.  As of May 9, 2016, "564 physicians have registered for the NYS Medical Marijuana Program, and 3,549 patients have been certified by their doctors."

According to the Frequently Asked Questions, under the law, "qualified patients must be diagnosed with a specific severe, debilitating or life threatening condition that is accompanied by an associated or complicating condition." The law only permits coverage for patients who are diagnosed with a limited number of conditions such as cancer, AIDS, and Parkinson's disease, and marijuana use is permissible to treat the serious symptoms associated with such diseases such as severe or chronic pain, severe nausea, or seizures.2

The crux of the law is that it protects qualifying patients, caregivers and medical practitioners from any penalty associated with the certified medical use or manufacture of marijuana.  Critically, being a certified patient is tantamount to having a "disability" under the New York State Human Rights Law.  Thus, an employer may face liability for disability discrimination for taking action against an employee simply because the employee legitimately used medical marijuana or is certified to do so, and employers may have obligations to accommodate certified patients.

However, the law contains two caveats for employers: (1) the law does not "bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance;" and (2) the law does "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."  This means that employers may lawfully maintain – and enforce – drug-free workplace policies; and federal contractors, who often are required to administer drug tests for their employees as a condition of the federal contract, are lawfully permitted to administer drug tests, and take appropriate action against employees who test positive for marijuana, even if such employees are certified as medical marijuana patients.

New Jersey

The New Jersey Compassionate Use Medical Marijuana Act became effective in January 2010.  Similar to New York, New Jersey protects individuals with a "debilitating medical condition," as well as their doctors, caregivers, and authorized producers of medical marijuana from any criminal or civil penalty as a result of the use of medical marijuana.

The New Jersey law does not require "an employer to accommodate the medical use of marijuana in any workplace."  Thus, employers are likely permitted to discipline employees for using marijuana at the workplace, or for coming to work under the influence of marijuana.  However, the law is ambiguous with regard to whether an employer can take adverse action based on an employee's medical marijuana prescription, or for failing a drug test due to the certified use of medical marijuana.

This ambiguity was the subject of a lawsuit titled Davis v. New Jersey Transit, No. L-001778-14 (N.J. Super. Ct., Essex Co.), brought in 2014.  According to The Record, the plaintiff informed his employer, New Jersey Transit, that he was certified as a medical marijuana patient, but after he failed a drug test, his employer sent him to rehab.  The plaintiff filed suit alleging discrimination in violation of the New Jersey Law Against Discrimination, and the court denied the employer's motion to dismiss.  While commentators anticipated that the case would provide guidance to New Jersey employers, it has since settled, leaving employers without greater clarity as to their rights and obligations under the law.

Connecticut

In Connecticut, the medical marijuana law provides "qualifying patients" and their primary caregivers protection from discrimination in housing and employment.  To be a "qualified patient" under the law, a person must be eighteen years of age or older and been diagnosed by a physician as having a debilitating medical condition.  The "primary caregiver" is someone other than the qualifying patient and the qualifying patient's physician, who must be eighteen years of age or older and is responsible for managing the well-being of the qualifying patient with respect to the palliative use of marijuana.

A debilitating medical condition sufficient to qualify for medical marijuana in Connecticut includes cancer, HIV, Parkinson's, multiple sclerosis, PTSD and Crohn's disease, among other conditions.  The Department of Consumer Protection also has discretion to include other conditions in forthcoming regulations.

Where an employee is a medical marijuana patient or primary caregiver of a patient, the employer may not refuse to hire or discharge, penalize, or threaten an employee on that basis.  The law also provides employers the right to restrict use of "intoxicating substances" during work hours and allows employers to discipline employees for being under the influence of intoxicating substances during work hours.

Notably, a Connecticut state employee has sued to overturn an arbitration decision finding that his termination for smoking marijuana on the employer's premises was lawful.  See State of Connecticut v. Conn. Employees Union Independent, CV 146049002S, 2014 WL 5572251 (Oct. 7, 2014), appeal proceeding at S.C. 19590 (2016).  The employee argued that he used marijuana for palliative purposes.  The Connecticut Supreme Court heard an appeal of the case on March 31, 2016.  Interestingly, the medical marijuana statute is not implicated in his suit, but the holding of this case will no doubt be a smoke signal to employers with qualifying patient-employees.

Implications for Employers

Given the narrow scope of the medical marijuana laws discussed above, we do not expect employers in the tristate area to experience a high volume of employees presenting issues related to medical marijuana.  Nonetheless, employers should be aware of their obligations under these laws and are encouraged to:

  • consult with employment counsel immediately if employees come to work under the influence of marijuana, or if employee performance declines and marijuana is suspected to be at issue;
  • review employer policies and employee handbooks to ensure that drug-free workplace policies are in compliance with the law;
  • educate managers and supervisors regarding their responsibilities and obligations under the law.

Footnotes

1 In Amsterdam, " [i]t is officially tolerated to buy small quantities of marijuana at licensed coffee shops, or to grow it for personal use, but growing and dealing wholesale quantities remain illegal."

2 The Commissioner of Health may add or remove conditions covered by the law.

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.

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Authors
Samuel Sverdlov
Meredith-Anne Berger
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