While many states have legalized medical and recreational marijuana, marijuana remains an illegal controlled substance under federal law. As we have previously discussed, this has created a conundrum of sorts for employers who want to maintain a drug free workplace. In New York State, the landscape for employers has just gotten more challenging.
Medical marijuana has been legalized in the state since 2014. Governor Cuomo has since announced legalized recreational use may soon follow. Additionally, in New York City, employers are prohibited, with certain exceptions, from testing job applicants for marijuana. Employers can, however, test current employees.
Despite these legislative initiatives, a question still remains: What happens if an employee tests positive at work, but has a prescription for medical marijuana? A recent New York appellate court decision warns employers should proceed with caution.
In Gordon v. Consolidated Edison, Inc., an appellate panel ruled that a financial analyst who was terminated by Con Edison after a positive drug test could sue the utility company for disability discrimination.
Plaintiff Kathleen May Gordon suffered from irritable bowel disease (IBD) and was told by her doctor she would be a suitable candidate for medical marijuana. On December 17, 2016, Ms. Gordon tried marijuana and claimed the drug worked “instantaneously” to relieve her symptoms. The next day, Ms. Gordon made an appointment with the New York State Department of Health’s Medical Marijuana Program to be certified as a patient as IBD is one of the illnesses designated in the Compassionate Care Act as appropriate for treatment with cannabis. The appointment was scheduled for December 27, 2016.
Just a few days later, but before she was certified by the state as a medical marijuana user, Ms. Gordon tested positive for marijuana while at work after being a randomly screened by Con Edison. The company informed her of the result a week later, the same day she was certified by the state as a medical marijuana patient.
A Con Edison medical review officer found that Ms. Gordon had violated the company’s drug policy, because she was not yet a certified medical marijuana patient when she used marijuana. The human resources department deemed, because she was still a probationary employee, Ms. Gordon was “ineligible” for an accommodation and subsequently was terminated.
Ms. Gordon brought suit, alleging claims of discrimination under the New York State Human Rights Law, the New York City Human Rights Law, and the New York City Public Health Law.
The appellate court affirmed the lower court’s denial of defendant’s motion for summary judgment and held that Ms. Gordon could move forward with her discrimination claims.
The court found that being a medical marijuana patient is a protected “disability” under the state law, and that IBD is a protected “disability” under the city law, thus entitling Ms. Gordon to certain rights under the law. The court was critical of the fact that Con Edison did not engage in an “interactive dialog” about making an accommodation, as is required under the New York State and New York City laws. The court held there were questions of fact as to whether Con Edison “improperly cut the dialogue process short” or “adequately engaged in a cooperative dialogue with plaintiff to determine whether it could reasonably accommodate her status as a medical marijuana patient.”
The court explained, “[q]uestions of fact exist as to whether defendant improperly cut the dialogue process short when it discovered that plaintiff was a probationary employee, and refused to consider accommodating her — as it regularly did for permanent employees — by, for example, giving her discipline short of termination, or simply overlooking the one-time technical violation in light of her contemporaneously acquired status as a medical marijuana patient.”
The court also noted that Ms. Gordon started the certification process before she tested positive at work. Additionally, Ms. Gordon was not accused of any misconduct at work and Con Edison never claimed her marijuana use negatively impacted the quality of her work nor were there allegations of her use of drugs on the job.
While the court permitted Ms. Gordon to move forward with her discrimination claims, the court dismissed her claim under the Public Health Law, finding that the Public Health Law did not create a private right of action.
What Does This Mean For NY employers?
This decision now leaves little question that medical marijuana use, when necessary because of a medical condition, must be “accommodated” like any other lawful medication prescribed to a disabled employee. Employers must ensure they engage in an “interactive dialogue” and consider any reasonable accommodations before taking adverse actions against an employee for reasons related to medical marijuana.
Even in the face of a positive drug test, employers cannot and should not automatically terminate the employee. Employers must first consider whether the employee is a certified user. If the employee is a certified user, employers must engage in an interactive dialogue to determine whether it must accommodate. In this example, plaintiff’s “probationary” status did not prevent her from having a claim, therefore employers should remember that even a new or probationary employee is protected under the discrimination laws and accommodation must be considered.
It is imperative that employers document this interactive process and do not rush to judgment. During that interactive dialogue, employers should consider the following:
- The nature of the employee’s job and whether it is in a safety sensitive occupation
- Whether there have been attendance issues or errors in the employee’s job
- Whether the cannabis has impacted work performance
In summary, employers do not have to accommodate employees who cannot adequately perform their job functions or are excessively absent due to use to medical marijuana. But employers also cannot automatically terminate an employee who is a medical marijuana patient if he/she tests positive for drug use. This indeed is a conundrum for employers who regularly issue drug tests to employees and as with many issues that are developing, employers are well advised to check with experienced employment counsel before proceeding to terminate a medical marijuana user.