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Summary of differences between federal and state regulations
Medical marijuana
Individuals suffering from covered medical conditions are permitted to use medical marijuana and will not be subject to arrest for certified use of medical marijuana. Employers may prohibit employees from working while impaired by marijuana.
Being a certified patient shall be deemed to have a disability under the state’s Human Rights Law. If an applicant or employee is using medical marijuana, the supervisor should engage in the interactive process to obtain more information. Under the state’s human rights law, reasonable accommodations should be considered.
Court case
In Gordon v. Consolidated Edison, Inc., (April 21, 2020), an employee sued an employer for being terminated a few weeks after testing positive for marijuana. After taking the drug test, and before being terminated, she became a certified medical marijuana patient. Under the state’s medical marijuana law, medical marijuana users are protected by the New York Human Rights Law.
The court denied summary judgment to the employer in this case, in part, because the employee was a member of protected class at the time she was fired and the company did not engage in the interactive process to assess her needs and the reasonableness of the accommodation.
In addition, the company said it had a practice of terminating new employees who fail their first drug test. This was not detailed in the company’s policy, however. Because of this, it was unclear whether the failed drug test was the real reason the employee was terminated.
Workers’ compensation guidance: On April 12, 2017, the Department of Financial Services issued guidance informing insurers that when a covered office visit results in a medical marijuana certification, insurers may not deny coverage for the office visit solely because the visit included a medical marijuana certification. Insurers must provide coverage for office visits for covered services, including those that may result in a medical marijuana certification, as long as the visit was not solely for the purpose of the certification.
Recreational marijuana
Recreational marijuana was legalized under the Marijuana Regulation and Taxation Act (MRTA). Marijuana use outside the workplace is protected, but the law allows employers to maintain a drug-free workplace policy, prohibit use at work, and follow federal and state drug testing laws when required. The law allows for possession of up to 3 ounces of cannabis and 24 grams of concentrated cannabis.
Protections for use
Recreational marijuana users are protected by the state’s Lawful Activities Act and can use marijuana when they are not working. Guidance from the New York Department of Labor indicates that cannabis is a legal consumable product. Because of this, unless an exemption applies, employers cannot discriminate against employees based on an employee’s use of the drug:
- Away from the workplace,
- Outside of work hours, and
- Without use of the employer’s equipment or property.
In addition, an employer cannot require employees to promise or agree to not use cannabis as a condition of employment.
The discrimination protections apply to all public and private employers in New York State. These protections do not apply to:
- Students who are not employees,
- Independent contractors,
- Volunteers, or
- Individuals under age 21.
The law allows employers to do a drug test for cannabis and take action when required to do so under state or federal law. This includes laws that apply to drivers of commercial motor vehicles.
Restrictions on use
Employers may prohibit:
- Use of cannabis during work hours,
- Use of cannabis on company property,
- Use of cannabis while using an employer’s equipment or property,
- Use of cannabis during paid and unpaid breaks and meal periods and on-call time,
- Cannabis possession in an employer’s leased or rented space,
- Cannabis use or possession in a company vehicle, even after regular business hours, and
- Cannabis storage in a locker or desk at work.
In addition:
- Marijuana smoking is not allowed in a location where tobacco smoking is prohibited, and
- It is illegal to drive while under the influence of marijuana.
Drug testing limitations
Drug testing for marijuana is limited under the MRTA. A test for cannabis cannot serve as a basis for an employer’s conclusion that an employee was impaired by use of cannabis.
Action based on marijuana use
Guidance from the state Department of Labor indicates that an employer may take action based on marijuana use when:
- The employer’s actions are required by a state or federal statute, regulation, or mandate,
- The employer’s actions would cause the employer to be in violation of federal law or would result in the loss of a federal contract or funding,
- The employee is impaired by cannabis, meaning the employee shows specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, and
- The employee shows signs of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace, as required by state and federal safety laws.
Symptoms of impairment
An employer may take action when the employee shows “specific articulable symptoms” of impairment. While there is no specific list, the state notes that articulable symptoms of impairment are objectively observable indications that the employee’s job performance is decreased or lessened. For example, operation of heavy machinery in an unsafe and reckless manner may be an articulable symptom of impairment.
If an employee is showing signs of impairment by cannabis while working, an employer may take action even if the employer has not adopted a policy expressly prohibiting use of marijuana.
However, because these signs may also indicate that an employee has a disability protected by the state’s Human Rights Law, employers must consider laws prohibiting disability discrimination. Employers should consult with professionals regarding local, state, and federal laws prohibiting disability discrimination.
Signs that are not symptoms of impairment
The smell of cannabis, on its own, is not an articulable symptom of impairment.
In addition, a positive test for cannabis cannot be the basis for an employer’s conclusion that an employee is impaired by the use of cannabis.
Consequences of marijuana use
If an employee uses marijuana at work, during work hours, or on company property, an employer may discipline or terminate the employee, but is not required to do so.
Use of cannabis while on leave
Employers cannot prohibit the use of cannabis while an employee is on leave unless the employer is required to do so under state or federal law.
Use by remote employees
An employer cannot prohibit remote employees from using cannabis at a home worksite. However, an employer may:
- Prohibit use during work hours.
- Take action if an employee is exhibiting symptoms of impairment during work hours.
State
Contact
Regulations
Medical Marijuana Program Regulations https://roar-assets-auto.rbl.ms/documents/14577/regulations.pdf