Employers face substantial uncertainty as to how they can and should address state legalization of medical or recreational marijuana. Regardless of how employers choose to address marijuana legalization in their workplaces, the most important thing is that they have a well-communicated written plan in place. Employers should have policies in place for handling a range of scenarios, from what to do when a prospective employee has a state certification to use medical marijuana, to how to deal with an employee who fails a mandatory drug test for marijuana use in a state where recreational cannabis is legal.
New York passed its Compassionate Care Act last year and is in the process of developing rules and regulations governing the manufacture, prescription and distribution of medical marijuana. However, unlike other states that have legalized marijuana in one form or another, New York’s proposed regulations will contain a provision specifically addressing the use of medical marijuana in the employment and workplace context.
According to a recent article in the New York Business Journal, the proposed law will contain an anti-discrimination provision that will deem a certified medical marijuana patient as having a disability under New York Human Rights Law. The effect of this designation will be to place all certified medical marijuana patients in New York in a protected class. Employers will therefore need to make accommodations for certified medical marijuana patients, just as they would for any other person with a disability under New York state law.
At the same time, however, the proposed New York law allows employers the flexibility to maintain a drug-free workplace, and to require mandatory drug testing. How this provision will jibe with the special protections afforded certified patients remains unclear. The law is ambiguous as to how employers will be allowed to address workplace impairment, and a subsequent positive drug test, on the part of a certified patient.
Also keep in mind that some states, including California, Oregon and Colorado, have upheld an employer’s right to terminate an employee for marijuana impairment in the workplace, even for employees with valid medical marijuana certification.
In light of this ambiguity, and for all employers, regardless of what state they operate in, having a clear workplace drug impairment policy in place and signed by all employees is a smart way to stay ahead of the curve. Employers need to ensure that their employee handbook and drug policies comply with state law and ensure that the company is protected in the event that workplace drug policy issues arise.
As marijuana continues its path toward legalization, we see more states enacting laws forbidding employers from discriminating against those who use it. Independent of that, we also see more employers choosing to focus solely on workplace performance and not on what their employees take for medicine or choose to do in their spare time.