New York continues to be at the forefront with employee-friendly laws, regulations, and court rulings. The state's treatment of marijuana in the workplace is no exception. In 2020, New York City implemented a new drug-testing ban for job applicants, and its courts continue to expand and protect the rights of employees who use medical marijuana. Accordingly, employers should beware.

NYC Prohibition on Testing Applicants for THC

As we previously reported, beginning May 10, New York City prohibited employers from testing prospective employees for the presence of tetrahydrocannabinol (THC), the active ingredient in marijuana. The law has exemptions, including certain safety-sensitive positions, and any jobs with mandatory testing under federal laws. The law also does not bind employers who are a party to a collective bargaining agreement that "specifically addresses" the drug testing of applicants.

On March 10, the New York City Commission on Human Rights proposed additional rules, which identify positions that will be subject to testing "with the potential to significantly impact the health or safety of employees or members of the public." If finalized, the Commission's proposed rules would clarify that employers may test applicants for THC if:

  1. 1. The position requires an employee to regularly, or within one week of beginning employment, work on an active construction site;
  1. 2. The position requires an employee to operate heavy machinery;
  1. 3. The position requires an employee to regularly work on power or gas utility lines;
  1. 4. The position requires an employee operate a motor vehicle on an approximately daily basis; or
  1. 5. Impairment would interfere with an employee's ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.

The Commission's proposed rules also clarify that "significant impact on health and safety" does not include concerns that a positive drug test "indicates a lack of trustworthiness or lack of moral character." Adoption of the rules has been delayed due to COVID-19, but if they are implemented, any violations may result in civil penalties up to $250,000 as well as consequential damages, punitive damages, and attorneys' fees.

New York Employer Sued for Discharging Employee for Positive Marijuana Test

A recent New York state court decision puts employers on notice that they must proceed with caution when terminating an employee who fails a drug test for marijuana. Con Edison randomly drug tested Kathleen Gordon pursuant to the company's drug-testing policy. Con Edison's drug policy prohibits employees from working under the influence of drugs, and maintains an informal policy of terminating employees with less than six months of service for a first offense. Gordon, an employee with less than six months' service, failed the drug test, having tested positive for marijuana. After that test result, but prior to the date Con Edison terminated her employment, Gordon obtained a medical marijuana registry card in order to use marijuana to treat inflammatory bowel disease. Gordon then presented her medical marijuana registry card to Con Edison. However, despite notice of the "belated" medical card and her medical condition, Con Edison terminated her employment for violating the company's drug-testing policy.

Gordon sued Con Edison, among others, for disability discrimination based on her disability and failure to accommodate a disability, in violation of the New York State Human Rights Law and New York City Human Rights Law.

Con Edison then moved to dismiss the case and argued, among other things that (1) Gordon was not a member of a "protected class" – a required element of her disability/failure to accommodate claims – because Con Edison terminated her for violating its drug policy prior to her being certified in New York as a medical marijuana patient; and (2) she could not show her termination gave rise to an inference of discrimination. In opposition, Gordon argued that Con Edison "understood" she was using marijuana at her doctor's direction and Con Edison knew that she held a medical marijuana registry card prior to her discharge. Moreover, she claimed that despite that knowledge, Con Edison never discussed any accommodations with her prior to terminating her employment.

In the end, the court denied Con Edison's motion. The court found that Gordon was a member of a protected class as a result of her status as a certified medical marijuana patient. Even though Gordon was not a certified medical marijuana patient at the time she failed her drug test, the evidence was undisputed that she had become a certified patient before her discharge, and that Con Edison was aware of this fact. In addition, because New York law considers medical marijuana cardholders to be disabled, Gordon had established she was a member of a protected class at the time of her discharge. The court also found that Gordon's reasonable accommodation claim could proceed because she was a member of a protected class (also a required element of her accommodation claim). The court also noted that, at the very least, there was an issue of fact of whether Con Edison engaged in the required good faith interactive process to determine whether an accommodation existed as an alternative to terminating Gordon.

In sum, New York employers need to take caution when disciplining employees for an issue relating to marijuana. Employers should seek counsel early and get the decision right to avoid the risk and cost of a lawsuit.