What you need to know about New York’s new medical marijuana law

by Kerry Langan and Laura Harshbarger, Esqs., Bond, Schoeneck & King, Syracuse

With the July 2014 enactment of the Compassionate Care Act, New York became the 23rd state to legalize medical marijuana.

The law creates a medical marijuana program for individuals suffering from severe, debilitating or life-threatening conditions such as cancer, Parkin­son’s disease and epilepsy, among others.

The goal is to ensure that medical marijuana is available for certified patients with “serious conditions” and is administered in a manner that protects the public health and safety. The New York State Depart­­ment of Health will certify physicians to administer marijuana, register organizations to provide the drug, issue identification cards to qualifying individuals, establish the list of serious conditions and regulate the price of the drug. This program is expected to be up and running within the next 18 months.

Worker protections

Employers should become familiar with how the law may affect the workplace.

The Compassionate Care Act creates protections for employees who legally use medical marijuana. For example, employers may not take disciplinary action against employees because of their lawful use of marijuana.

In addition, employees who lawfully use medical marijuana are deemed to have a disability under the New York Human Rights Law. As a result, em­­ployers that discipline or terminate someone for lawfully using medical marijuana may be liable for a disability discrimination claim. Employers must consider making workplace accommodations for individuals who use medical marijuana.

While this aspect of the law will likely present new challenges for employers, there are certain things you should be mindful of to help manage these situations.

Stoned at work? That’s not legal

The law does not prevent employers from enforcing policies and procedures prohibiting employees from being impaired at work. Employers can lawfully prohibit all employees, including those that utilize medical marijuana, from working while impaired.

As a practical matter, if you know that an employee is certified to use medical marijuana, it may be helpful to request information from the employee’s doctor to determine if and to what extent the employee may be impaired in the performance of job duties. Consider whether accommodations can be provided to allow the employee to work unimpaired (such as modifying the employee’s hours of work based on his or her medical use regime).

The law does not require employers to allow employees to utilize or carry medical marijuana if it would violate federal law or put their business in jeopardy of losing a federal contract or federal funding.

What employees must do

An individual authorized to use medical marijuana must obtain a registration and identification card and carry it whenever the individual has marijuana in his or her possession. This registration card will make it easier for you to verify whether employees are lawfully in possession of marijuana in the workplace. If an employee has marijuana in his or her possession and cannot produce the registration card upon demand, the employee is not lawfully utilizing the drug and is not entitled to employment protections.

In addition to a registration card, an individual must also have a valid prescription from a certified physician in order to lawfully use medical marijuana. Be aware of this in case an employee tests positive for marijuana use; a positive result for marijuana may not necessarily justify adverse employment action.

What employees may not do

Certified individuals may only injest medical marijuana orally or breathe in vapors; the law strictly prohibits them from smoking it. Therefore, if an employee smokes marijuana at work or if you reasonably conclude based on other evidence (such as the odor) that the employee is smoking marijuana recreationally, he or she loses employment protection.

Certified individuals are prohibited from consuming marijuana (in any form) in a public place.

“Public place” is not currently defined; however, the Commissioner of Health was granted the authority to issue regulations defining what constitutes a public place. If the commissioner defines it to include the workplace, employers will not be required to accommodate employees by allowing them to consume marijuana at work. (And, of course, if ingestion at work would result in impairment, accommodation would not be required in any event).

Next steps

Any final guidance to employers must await the regulations issued by the Commissioner of Health. However, it is not too early for you to begin considering how this new law will affect your workplace.

The most obvious change you may have to make involves misconduct policies that address the use of drugs. You will need to ensure that your policies appropriately carve out an exception for (or otherwise do not subject to discipline) lawful medical use of marijuana.

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Laura Harshbarger and Kerry Langan represent employers out of Bond, Schoeneck & King’s Syracuse office. Contact Laura at lharshbarger@bsk.com; Kerry may be reached at ­klangan@bsk.com.