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While many states have legalized medical and recreational
marijuana, marijuana remains an illegal controlled substance under
federal law. As we have previously discussed, this has created a
conundrum of sorts for employers who want to maintain a drug free
workplace. In New York State, the landscape for employers has just
gotten more challenging.
Medical marijuana has been legalized in the state since 2014.
Governor Cuomo has since announced legalized recreational use may
soon follow. Additionally, in New York City, employers are
prohibited, with certain exceptions, from testing job applicants
for marijuana. Employers can, however, test current employees.
Despite these legislative initiatives, a question still remains:
What happens if an employee tests positive at work, but has a
prescription for medical marijuana? A recent New York appellate
court decision warns employers should proceed with caution.
In Gordon v. Consolidated Edison, Inc., an appellate panel
ruled that a financial analyst who was terminated by Con Edison
after a positive drug test could sue the utility
company for disability discrimination.
Plaintiff Kathleen May Gordon suffered from irritable bowel
disease (IBD) and was told by her doctor she would be a suitable
candidate for medical marijuana. On December 17, 2016, Ms. Gordon
tried marijuana and claimed the drug worked
“instantaneously” to relieve her symptoms. The next day,
Ms. Gordon made an appointment with the New York State Department
of Health’s Medical Marijuana Program to be certified as a
patient as IBD is one of the illnesses designated in the
Compassionate Care Act as appropriate for treatment with cannabis.
The appointment was scheduled for December 27, 2016.
Just a few days later, but before she was
certified by the state as a medical marijuana user, Ms. Gordon
tested positive for marijuana while at work after being a randomly
screened by Con Edison. The company informed her of the result a
week later, the same day she was certified by the state as a
medical marijuana patient.
A Con Edison medical review officer found that Ms. Gordon had
violated the company’s drug policy, because she was not yet a
certified medical marijuana patient when she used marijuana. The
human resources department deemed, because she was still a
probationary employee, Ms. Gordon was “ineligible” for an
accommodation and subsequently was terminated.
Ms. Gordon brought suit, alleging claims of discrimination under
the New York State Human Rights Law, the New York City Human Rights
Law, and the New York City Public Health Law.
The appellate court affirmed the lower court’s denial of
defendant’s motion for summary judgment and held that Ms.
Gordon could move forward with her discrimination claims.
The court found that being a medical marijuana patient is a
protected “disability” under the state law, and that IBD
is a protected “disability” under the city law, thus
entitling Ms. Gordon to certain rights under the law. The court was
critical of the fact that Con Edison did not engage in an
“interactive dialog” about making an accommodation, as is
required under the New York State and New York City laws. The court
held there were questions of fact as to whether Con Edison
“improperly cut the dialogue process short” or
“adequately engaged in a cooperative dialogue with plaintiff
to determine whether it could reasonably accommodate her status as
a medical marijuana patient.”
The court explained, “[q]uestions of fact exist as to
whether defendant improperly cut the dialogue process short when it
discovered that plaintiff was a probationary employee, and refused
to consider accommodating her — as it regularly did for
permanent employees — by, for example, giving her discipline
short of termination, or simply overlooking the one-time technical
violation in light of her contemporaneously acquired status as a
medical marijuana patient.”
The court also noted that Ms. Gordon started the certification
process before she tested positive at work. Additionally, Ms.
Gordon was not accused of any misconduct at work and Con Edison
never claimed her marijuana use negatively impacted the quality of
her work nor were there allegations of her use of drugs on the
While the court permitted Ms. Gordon to move forward with her
discrimination claims, the court dismissed her claim under the
Public Health Law, finding that the Public Health Law did not
create a private right of action.
What Does This Mean For NY employers?
This decision now leaves little question that medical marijuana
use, when necessary because of a medical condition, must be
“accommodated” like any other lawful medication
prescribed to a disabled employee. Employers must ensure they
engage in an “interactive dialogue” and consider any
reasonable accommodations before taking adverse actions against an
employee for reasons related to medical marijuana.
Even in the face of a positive drug test, employers cannot and
should not automatically terminate the employee. Employers must
first consider whether the employee is a certified user. If the
employee is a certified user, employers must engage in an
interactive dialogue to determine whether it must accommodate. In
this example, plaintiff’s “probationary” status
did not prevent her from having a claim, therefore
employers should remember that even a new or probationary employee
is protected under the discrimination laws and accommodation must
It is imperative that employers document this interactive
process and do not rush to judgment. During that interactive
dialogue, employers should consider the following:
- The nature of the employee’s job
and whether it is in a safety sensitive occupation
- Whether there have been attendance
issues or errors in the employee’s job
- Whether the cannabis has impacted
In summary, employers do not have to accommodate employees who
cannot adequately perform their job functions or are excessively
absent due to use to medical marijuana. But employers also cannot
automatically terminate an employee who is a medical marijuana
patient if he/she tests positive for drug use. This indeed is a
conundrum for employers who regularly issue drug tests to employees
and as with many issues that are developing, employers are well
advised to check with experienced employment counsel before
proceeding to terminate a medical marijuana user.
Originally Published by Kelley Drye & Warren LLP,
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.