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Cannabis, the Law, and You: Employee Medical Cannabis Use Rights in NY

With the recent passage of its adult-use cannabis law, New York becomes the 15th state to legalize recreational cannabis. But while the state has had a medical cannabis law on the books since 2014, some workers are still unclear on their rights as employees. And seeing that cannabis is still prohibited under federal law, many working New Yorkers worry that their legal use of medical cannabis could end up costing them their jobs. Where does the legal landscape stand? Let’s take a look at employee medical cannabis use rights in NY.

Employee Medical Cannabis Use Rights in NY: Basic Protections

By most standards, New York law is relatively tolerant of those who rely on medical cannabis. Medical cannabis patients are classified as “disabled” under the New York State Human Rights Law (NYSHRL). This means that New York employers with four or more employees are prohibited from terminating or refusing to hire someone on the basis of their status as certified medical cannabis patients.

What’s more, employers must reasonably accommodate such an employee. The law specifically provides that patients shall not be subject to “disciplinary action by a business…solely for the certified medical use or manufacture of” cannabis.

An employer may be subject to a discrimination claim if it fires or disciplines an employee for lawfully consuming cannabis.

In 2016, this was put to the test when Con Edison fired employee Kathleen Gordon for failing a random drug test. Even though Gordon had not yet been certified as a medical cannabis patient, a court ruled that Con Edison had erred in summarily terminating her. What’s more, it found that the energy company had not engaged in any “interactive dialogue” with Gordon, which might have helped the parties come to an equitable resolution.

Employee Medical Cannabis Use Rights in NY: To Test or Not to Test?

That said, the law doesn’t place all the power in patients’ hands. If an employer believes in good faith that a worker’s performance is impaired due to cannabis consumption, it can take disciplinary action, especially in situations where safety-sensitive positions are involved.

Most notably for patients, the current law:

  • Does not bar the enforcement of a workplace policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance.
  • Allows the employer to terminate or discipline the medical cannabis cardholder when not doing so would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations (such as federal Department of Transportation regulations which prohibit a person required to have a commercial driver’s license to drive when using cannabis for any reason).

Given the protections afforded such certified patients, most legal experts caution that New York employers carefully consider any actions against employees who use medical cannabis. And as the Con Edison case we referenced suggests, many are finding that opening an honest dialogue with their employees is far easier and more productive than opening themselves up to the possibility of a wrongful termination lawsuit.

Employee Medical Cannabis Use Rights in NY: In Conclusion

Even before the recent passage of the state’s adult-use bill, it was clear that New York was leaning towards protecting its residents’ employee rights. To that end, in 2020 New York City put into place a law prohibiting testing for THC in pre-employment screenings (certain positions, such as law enforcement and medical services, are exempt).

Of course, until there’s a federal rescheduling of cannabis, New York’s medical cannabis patients—who, as of 2020, numbered roughly 115,000—will continue to experience some legal jeopardy. But we’re optimistic that as the real possibility of federal drug policy reform approaches, those medical cannabis patients will have reason to breathe a sigh of relief.