New York's Compassionate Care Act, enacted on July 7, 2014, places New York in the company of 22 other states and the District of Columbia who permit the use of marijuana for medical purposes. Important for employers, the law defines those patients certified to receive medical marijuana as "disabled."
In addition to New York, the following states/districts have legalized medical marijuana: Alaska, Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. If you have offices or locations in any of these states or in D.C., it is important to be aware of certain practical implications relating to the legalization of medical marijuana.
1. Discipline Following Positive Drug Test
While Delaware and Minnesota's statutes prohibit discrimination against employees and applicants based on positive drug tests (whether pre-hire, random or otherwise), the Sixth Circuit found that an employer did not violate the Michigan Medical Marijuana Act, public policy or disability accommodation laws after it terminated an employee who tested positive for medical marijuana use. See Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012). However, even in those states with anti-discrimination laws against medical marijuana users, employees are not protected from marijuana use while on the job. Further, this protection only extends to those persons who register as qualified patients and have a valid prescription from a qualified prescribing physician in compliance with the applicable state law requirements allowing for the use of medical marijuana. Employees should be required to present evidence of the lawful use of medical marijuana in these instances.
Despite these statutes, safety concerns trump an employee's right to use medical marijuana. For example, the rules set by the Department of Transportation regulating drug and alcohol use for truck drivers override an employee's right to take medical marijuana, even in states where it is legal.
2. Disability Discrimination
The New York law specifically classifies individuals prescribed medical marijuana as "disabled." Accordingly, employers may need to provide reasonable accommodation for medical marijuana users. While courts have not yet addressed the issue of what constitutes a "reasonable accommodation" for medical marijuana use, one suggestion is relaxing an employer's drug policy to permit the employee's medical marijuana use. Whether or not such "accommodation" is reasonable will depend on the employee's specific job. While it is low cost to the employer, if the side effects of marijuana have a negative impact on the employee's job, as could be the case of truck drivers or machine operators, such accommodation may not be reasonable.
Other states' laws, such as Alaska, provide an explicit provision exempting employers from "reasonably accommodating" the use of medical marijuana. Alaska Stat. § 17.37.040(d). This underscores the differences in medical marijuana laws across the country, and need to be familiar with the laws in each state where an employer does business.
3. Employer Reimbursement of Medical Marijuana
At least one state found that an employer and its workers' compensation carrier are responsible for reimbursing an employee for costs associated with his medical marijuana use. Vialpando v. Ben's Auto. Servs., No. 32,920, 2014 N.M. App. LEXIS 50 (N.M. Ct. App. May 19, 2014). The New Mexico Court of Appeals found that New Mexico's Workers' Compensation Act required an employer to reimburse an employee injured on the job for his medical marijuana use because the medical marijuana constituted a "service" or "prescription drug" under the Act. Further, it did not cause the employer to violate the Controlled Substance Act or violate public policy given that the United States Department of Justice deferred its right to challenge other states' medical marijuana laws. While this position may be an outlier, the framework outlined in the opinion could be applied to any other states' medical marijuana laws.
Employers face new and uncharted territory in the landscape of legalized medical marijuana use. However, familiarity with the existing laws and staying apprised when courts issue opinions interpreting these statutes serve as the primary defense.