Marijuana stands at a crossroads where federal and state regulations meet. Federally, marijuana is a schedule I substance, making the sale, use, possession, and transport illegal. However, states have begun to legalize and regulate use of the plant. Now that New York has become the most recent of 23 states, plus the District of Columbia, to legalize medical marijuana, employers in the state are faced with new questions. Can an employee be fired for testing positive for marijuana, even if he or she is a medical user? Are changes to substance use/abuse policies necessary? Workplaces in New Jersey operate under a different law, but are faced with similar questions. This article focuses on practical advice for employers in the Empire State and its close neighbors in the Garden State.
Decriminalization
Attitudes across the nation are changing, as recreational marijuana use, as well as medical marijuana use is becoming more common place. While Alaska, Colorado, Washington, Oregon, and the District of Columbia remain the only jurisdictions to have legalized recreational marijuana use, 14 other states, including New York, have decriminalized it. New Jersey has yet to decriminalize, but pending legislation may soon change that. Decriminalization means that minor offenses, such as possession without intent to sell, are reclassified as violations rather than crimes. In New York, for instance, possession of fewer than 25 grams is punishable by up to $100 fine, and comes with no jail time. Moreover, the offender does not acquire a criminal record, as the offense is not a misdemeanor or a felony.
New York Employers
The Compassionate Care Act (“the Act”) established the new legal structure for medical marijuana in New York, and although the Act is young, there are clear implications for many workplaces. The Act contains limited guidelines, but they are instructive. For example, employment decisions may not be based on an employee’s or applicant’s use of medical marijuana. That is, an employer may not discriminate against a worker for medical marijuana use the same way he or she may not discriminate against a worker for his or her sex.
Unlike some other states, however, New York only allows individuals with one of a short list of conditions to consume medical marijuana. For instance, in California, back pain may be enough for an individual to obtain a medical marijuana card. In New York, by contrast, only individuals suffering from severe ailments (e.g. cancer, ALS, Parkinson’s disease, and epilepsy) qualify for the program. Therefore, workplaces are not likely to be inundated with applicants or employees who qualify for the program.
If a worker qualifies for the program, the Act requires his or her employer to accommodate the worker. The Act categorizes medical marijuana use as a disability, and extends to it the protection of the state’s human rights law. What qualifies as a reasonable accommodation depends on the individual and the circumstances. In practice, this means that a qualified medical marijuana user may not be terminated for his or her use of the substance, even if drug testing is part of workplace policy. However, that does not mean that employers must allow marijuana consumption on workplace premises or during working hours. Substance abuse polices can still prohibit employees from working under the influence, but these policies must be updated to reflect any necessary accommodations for medical marijuana users.
Two final notes on the Act: first, qualified medical marijuana users are required to carry an identification card and produce it upon demand. If an employee fails to do so, and he or she has marijuana in their possession, that employee forfeits the above stated disability protections. Second, the Act does not require businesses to accommodate medical marijuana users if doing so would disqualify the business from receiving federal funding or put the business at significant risk of losing a federal contract.
New Jersey Employers
The legal landscape in New Jersey is slightly different. New Jersey’s medical marijuana law does not provide specifics about the workplace. As a result, although New Jersey’s medical marijuana law is older than New York’s, currently pending litigation will soon provide some much needed clarification. In Davis v. New Jersey Transit, an employee voluntarily disclosed his medical marijuana use, was drug tested, and ultimately terminated. Subsequently, he filed disability discrimination claims, and his case will likely set the tone for how the Garden State’s medical marijuana users are handled in the workplace.
Conclusion
The legal landscape is changing to reflect societal shifts, requiring employers to adapt. Recognizing the shift in law, adjusting workplace policies, and providing necessary accommodations will help ensure legal compliance in this evolving area.