Medical Marijuana, Still not a free pass in the NY employment world.

[Culvercreek hunt club]

Just go a bulletin  from one HR organization and I thought it would make interesting reading. Basically the new NY law for medical use basically protects the user from prosecution. Employer or Federal Govt rules would still apply. Medical use could disqualify you from employment or it's use could be cause for termination if you are under the influence on the job, or fail a random test

 

 

 

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Q: We are in a state that allows employees to use marijuana for
medical purposes. Can we still drug test employees even if they are
using medical marijuana under a doctor’s supervision? Do we have to
allow them to use medical marijuana at work as an accommodation
under the ADA?


A: Most state medical marijuana laws allow you to apply drug
testing policies to employees who are using marijuana in compliance
with state laws. This includes taking adverse employment action against
the employees who test positive or come to work under the influence of
marijuana. Further, medical marijuana is still considered an illegal drug
under federal law, and these state laws do not require you to allow the
use of medical marijuana in your workplace. In addition, the Americans
with Disabilities Act (ADA) has not been interpreted to require
accommodation of the marijuana use.

(Download free Drugs, Narcotics, and Alcohol model policy including HR
best practices and legal background.)

Twenty-three states and the District of Columbia permit marijuana use
for medical purposes, including Alaska, Arizona, California, Colorado,
Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Montana, Nevada, New
Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island,
Vermont, and Washington. As a general rule, these states’ medical
marijuana statutes decriminalize marijuana use by the state and allow
individuals with medical conditions to use marijuana as prescribed by a
physician.

However, the laws typically do not address whether employers must
accommodate employees using marijuana and thus do not prevent
enforcement of workplace drug policies, such as those prohibiting drug
use in the workplace or disciplining employees for positive drug tests.
Most also do not ban employers from refusing to employ individuals who
use medical marijuana. However, Connecticut, Maine, and Rhode Island
prohibit employers from discriminating against medical marijuana users
based on their use, unless required by federal law. Arizona’s and
Delaware’s medical marijuana laws go a step farther and prohibit
employers from taking adverse action including termination of applicants
and employees who test positive for marijuana unless they used,
possessed, or were impaired by marijuana in the workplace, or unless a
failure to do so would result in the employer losing a monetary or
licensing benefit under federal law or regulations.

The courts in the few states that have addressed the potential conflict
between the right to use medical marijuana and employers’ policies
banning, and requiring testing for, illegal drug use generally have upheld
the employer’s right to test and take action based on the presence of
drugs. Most of these decisions focus on the fact that while a state may
pass a law allowing the state to exempt certain people from criminal
prosecution for medicinal use of marijuana, the state is preempted under
the federal Controlled Substances Act (found in 21 U.S.C. §§801 et seq.,
and which prohibits marijuana use) from requiring employers to
accommodate illegal drug use in their workplaces.
 

So, for example, in Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914
(W.D. Mich. 2011), the court determined that it was lawful for Wal-Mart to
terminate the employee who was registered to use medical marijuana
after he tested positive for marijuana use because Michigan’s medical
marijuana statute does not regulate private employment but provides
only a defense against criminal prosecution. And, in Roe v. TeleTech
Customer Care Mgmt. 257 P.3d 586 (Wash. 2011), the court found that
the state medical marijuana law provided only a defense to criminal
prosecution for marijuana use, but it did not provide a private right of
action or establish a public policy to create a cause of action for wrongful
termination. Therefore it was lawful for the employer to rescind a
conditional offer of employment when an applicant tested positive for
marijuana.

Similarly, it is likely that employees who use medical marijuana are not
protected by the ADA and thus do not have to be accommodated
because the ADA’s definition of disability does not include someone who
is currently engaging in illegal drug use, and federal law criminalizes
marijuana use. Although no court cases have addressed whether
medical marijuana is considered the “illegal use of drugs” under the Title
I of the ADA (regulating employment discrimination and
accommodation), at least one court has determined that medical
marijuana is still an illegal use of drugs under Title II of the ADA
(regulating disability discrimination by public accommodations) since it is
unlawful under the federal Controlled Substances Act, in James v. City of
Costa Mesa, 700 F.3d 394 (9th Cir. 2012).
 

[phade]

Our HR Dept has been dealing with it across the board since we are a multi-national company. Basically, even in recreational states, we're still not allowing it. Medical cases are being reviewed case by case and I think they're not talking much about it publicly (within our company).

 

 

[moog5050]

How it plays out under the ADA will be interesting.

[AaronBlaine]

sounds like a case of reefer madness!

[stoneam2006]

It will be a no go for most workplaces especially industrial until someone develops a test that can test for it within the same time frame as alcohol. This test now tells within last month roughly and that's not accurate enough for them to allow the use at home and being able to enforce not working under the influence.

[AaronBlaine]

yea that's a good point they would have to come out with some kind of a refer stick breathalyzer or something like that I would imagine.  Its really supposed to be meant for relaxation not for work.  I would much rather see an opioid breathalyzer way before a pot one.  I think the heroin epidemic in this country is far more terrifying then any reefer sticks