Cannabis in the New York Workplace and the NYC Ban on Pre-Employment Drug Testing for Cannabis

Since the passage of the New York Compassionate Care Act (“CCA”) in July 2014 and the subsequent launch of the medical cannabis program in January 2016, New York employers have begun facing new legal challenges arising from the decriminalization of medical cannabis.  Specifically, employers need to understand their obligations (if any) to reasonably accommodate medical cannabis use and their rights to discipline employees for cannabis use. With Governor Cuomo’s recent announcement that New York will seek to enact legislation legalizing the adult use of recreational cannabis (which we blogged about here) and New York City’s recently passed ban on pre-employment drug testing for cannabis and tetrahydrocannabinols (“THC”), employers must be vigilant to follow any new developments to ensure compliance with state and local law.

Despite any state legislation to the contrary, cannabis with THC levels in excess of 0.3% is classified as a Schedule I substance under federal law and therefore, any use of cannabis (medical and adult use alike) violates federal law.  Therefore, certified medical cannabis users do not receive any protections under the federal Americans with Disabilities Act.  Employers operating in states where medical cannabis has been legalized, however, need to understand their rights and obligations under their respective state laws.

The Application of the CCA to the New York State Workplace

Pursuant to the CCA, “[c]ertified patients . . . shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . solely for the certified medical use or manufacture of marihuana, or for any other action or conduct in accordance with this title.”  N.Y. Pub. Health Law § 3369(1) (emphasis added).  As such, the CCA provides that a certified medical cannabis user cannot be subject to “disciplinary action” by an employer “solely” for the certified use of cannabis.

Additionally, the CCA explicitly contains a non-discrimination provision providing that “[b]eing a certified patient shall be deemed to be having a ‘disability’” under the New York Human Rights Law (“NYHRL”), which applies to all New York employers with four (4) or more employees.  N.Y. Pub. Health Law § 3369(2).  According to the NYHRL, employers cannot discriminate against employees on the basis of disability status.  Further, the NYHRL codifies that it is a discriminatory practice for an employer to refuse to provide reasonable accommodations to known disabilities of its employees unless the accommodations would fundamentally alter the nature of the business or cause an undue burden.  Accordingly, an employer may be subject to a discrimination claim if it takes an adverse employment action against an employee solely for the use of medical cannabis.  An employer may also face a failure to accommodate claim if it fails to reasonably accommodate a certified medical cannabis user.

Notably, however, the CCA codifies two exceptions to the non-discrimination provision: (1) employers are not prohibited from enforcing a policy that prohibits an employee from performing his or her job duties “while impaired by a controlled substance” and (2) no person or entity shall be required to violate federal law or take actions to cause it to lose a federal contract or funding.  As such, the first exception implies that an employer cannot discipline an employee for his or her use of medical cannabis outside of work.  While it is clear that an employer may enact and enforce a policy that prohibits the use of medical cannabis during the workday, the CCA’s failure to define “impaired” creates ambiguity as cannabis can have behavioral, mental, and physiological effects for up to twenty-four (24) hours after use.

Further, the lack of case law in New York also makes an employer’s obligations towards certified medical cannabis users under the CCA hazy.  In Taxi & Limousine Comm’n v. W.R., OATH Index No. 2503/17 (July 14, 2017), a taxi driver failed an annual drug test due to his status as a certified medical cannabis user.  Due to the failed drug test results, the Taxi & Limousine Commission instituted a fitness proceeding alleging that the taxi driver was unfit to retain his taxi license.  The administrative law judge (the “ALJ”) refused to find that the taxi driver was unfit because the positive drug test result did not arise from “illegal drug use” since the taxi driver had a medical cannabis certification.  The ALJ noted that the CCA provides that being a certified medical cannabis user is deemed to be a disability and that an employee may not be penalized in “any” manner or denied any right solely because of their lawful medical use of cannabis.

Additionally, in Gordon v. Consol. Edison, Inc., No. 152614/2017, 2018 WL 2560893 (Sup. Ct. N.Y. Cnty. May 29, 2018), the trial court denied the employer’s motion to dismiss a complaint asserting claims for disability discrimination and failure to accommodate based on the employee’s alleged disability status and her use of medical cannabis under the CCA.  In that case, the employee was terminated for failing a random drug test due to her alleged legal use of medical cannabis.  The employer asserted, in part, that the complaint should be dismissed because the employee was not a certified medical cannabis user protected by the CCA at the time of testing.  The court rejected this argument because it was unclear whether the employer knew that the employee received the cannabis registry card prior to her termination (which occurred three weeks after the drug test was administered).  Indeed, the court noted that the employer “may have” discriminated against the employee based on her disability and failed to accommodate her medical cannabis usage.

As illustrated in the cases above, the CCA’s non-discrimination provision can act as a shield for employees who are certified users of cannabis from being subjected to adverse employment actions.  At the same time, the CCA also allows employers to enact policies that forbid employees from being “impaired” while performing their job duties. Overall, the application of these two CCA provisions remains ambiguous due to the lack of case law.

On May 10, 2019, Int. 1445-A became law and will go into effect on May 10, 2020.  Under the new law, some New York City employers will be prohibited from requiring job applicants to submit to drug tests for cannabis and THC use.  Specifically, employers, labor organizations, and employment agencies (along with any agents of such entities) may not require an applicant to submit to a cannabis or THC drug test as a condition of employment.  Beginning on the effective date of this law, requiring applicants to undergo such tests will be considered an “unlawful discriminatory practice.”

Notably, however, there are several exceptions to this prohibition, which all relate to public safety. For example, the law does not apply to applicants applying for jobs in law enforcement, construction, or child or medical patient care. In addition, the law does not apply to applicants applying for any position requiring a commercial driver’s license or any position with the potential to significantly impact the health or safety of employees or members of the public as determined by the commissioner of citywide administrative services or the chairperson of the City Commission on Human Rights.  As such, these administrative agencies have the authority to create new exceptions to the law in the future.  Further, the prohibition on pre-employment cannabis and/or THC testing does not apply to applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses pre-employment drug testing of such applicants.

Employers should continue to follow any developments in the law and any new legislation that will be passed by New York State or New York City in the future.  Significantly, New York employers should be wary that they are still under an obligation to engage in the interactive process with their employees who are certified medical cannabis users to reasonably accommodate the employees’ underlying medical conditions.  Employers with any questions should consult counsel to ascertain their specific rights and obligations.