When I first heard about the proposal to legalize medical marijuana in NY, I asked an acquaintance who worked in the medical field about her thoughts on the matter. Her response was, “Well, it does a pretty good job of managing pain, plus it has fewer side effects than some of the narcotic-based pain killers (like Vicodin) that many patients currently use.” Of course we ended our conversation by exchanging stories about the extensive marijuana use we both witnessed in college.
So, right off the bat you should know that the medical marijuana allowed under the newly enacted “Compassionate Care Act” is probably not a gateway to your employees becoming junkies. If you still have strong feelings about your employees using marijuana while on the job, as Daniel Fisher points out, it still remains illegal for anyone to smoke marijuana or ingest it in a public place. Also, only employees with a “serious condition” can be prescribed marijuana from a certified physician. So, what qualifies as a serious condition? Though the law provides some examples (e.g. cancer, HIV/AIDS, or chronic pain) per Fischer, this list is not set in stone because the “the Commissioner of Health [has the authority] to expand the list of conditions for which marijuana may be permitted as a medical treatment.”
Once you find out that an employee is legally taking medical marijuana, you have to now treat that individual as a disabled worker that you must “accommodate”. Again, per Fischer, you should provide “the same disability accommodations as any other disabled employee, such as an employee who is a wheelchair user but is still capable of performing the essential duties of his or her job.” Any failure to do so will leave you open to a lawsuit under New York’s anti-disability discrimination laws.
That being said, this “accommodation” does not mean that you have to let your employees work even if they are impaired by this controlled substance. I believe Fischer sums up your rights best, “[e]mployers cannot treat their employees differently merely because they use medical marijuana, but they may prohibit their employees from working while impaired.”
So now that you know this how can you start protecting yourself and your business? Fischer offers a few helpful tips:
- Provide an outline of how to handle issues surrounding medical marijuana in your updated employee policies.
- This policy will help you “minimizing the risk of legal claims and other liabilities”.
- Let your employees know of any restrictions you may have about them working while impaired by medical marijuana or any other controlled substance.
Personally, I am always wary of new laws because you never know how they will play out in the courts over time. That being said, this law is under the umbrella of the state anti-discrimination laws (where there is a lot of legal precedence). So, if you just treat your employee as someone with a disability, you should be OK.
