In the June issue of the Employer Express, we covered Minnesota’s legalization of medical marijuana. Joining the ranks of states permitting the use of marijuana for medical purposes, on July 7, 2014, New York enacted the Compassionate Care Act, effective immediately. New York employers, particularly those operating in multiple jurisdictions, are cautioned to stay apprised of the state medical marijuana laws and their impact on the use and consequences of drug tests in the workplace.

New York is now the 23rd state to adopt legislation legalizing the use of marijuana for medical use. Under the state’s new law, a patient who has been certified by a healthcare provider to use medical marijuana will register with the New York State Department of Health and receive a patient identification card, with which they can obtain medical marijuana from no more than five certified organizations licensed to operate dispensaries.

Unlike most state laws to this effect, however, the New York law specifically classifies individuals validly prescribed medical marijuana as “disabled” under the state human rights law, thus, presumably requiring New York employers to provide reasonable accommodations for medical marijuana users. To be covered, individuals must suffer from a “serious condition,” defined as having one of the enumerated “severe debilitating or life-threatening conditions.” It is too soon to tell just what courts will deem to be a reasonable accommodation for a medical marijuana user, but employers can expect relaxed enforcement of an employer’s drug testing policy to be on the table. Presumably, however, courts will take into account whether or not such an accommodation can be deemed reasonable in light of the particular job functions at issue and the potential for the use of marijuana to negatively impact an employee’s job performance or more significantly, workplace safety. The New York State Department of Health is expected to promulgate regulations over the next 18 months implementing the statute. 

Medical marijuana laws across the country vary greatly. Employers are well-advised to consult counsel in their jurisdictions prior to adopting, revising, or enforcing any drug test policy against an employee that tests positive for medical marijuana.