Empire State High: New York Joins Ranks of States Legalizing Medical Marijuana Use. But What Does This Mean For Employers?

by Baker Donelson

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.