Most U.S. states now allow medical marijuana use to some extent, but marijuana remains strictly controlled under federal law. This creates a dilemma of sorts for employers. Mandatory drug testing is still a feature of many workplaces around the country, but if marijuana use is not always illegal, should it necessarily lead to firing or refusing to hire someone? The New Jersey Supreme Court recently ruled that an individual who was terminated because of lawful medical marijuana use outside of work can bring a disability discrimination claim. New York disability discrimination attorneys have been able to draw on state law to protect their clients since 2014, when the state approved medical marijuana use with express non-discrimination provisions. New York City will soon offer even more protection with a new law banning the use of pre-employment marijuana tests.
Medical Marijuana and Disability Discrimination in New York State
New York State’s Medical Marijuana Program arose from the Compassionate Care Act (CCA), which became law in 2014. The CCA states that “certified patients” have a “disability” for the purposes of state antidiscrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). Under the New York State Human Rights Law (NYSHRL), employers therefore may not discriminate against an employee or job applicant on the basis of lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a).
New York City’s Ban on Pre-Employment Testing
In April 2019, the New York City Council passed a local law amending the New York City Human Rights Law (NYCHRL) to prohibit pre-employment testing for marijuana and synthetic tetrahydrocannabinols (THC). See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). The new law will become effective on May 10, 2020, one year after it became law.