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.
The prohibition on marijuana testing in the hiring process does not apply to some job applicants, including those applying for:
– Law enforcement positions;
– Positions that require a commercial driver’s license;
– Positions involving child care, elder care, or medical services; and
– Positions where federal, state, or local laws or regulations require testing.
New Jersey Employment Law
The New Jersey Supreme Court ruled in early March 2020 that an employee with a medical marijuana prescription issued under the New Jersey Compassionate Use Act (CUA) can bring a claim for disability discrimination under the New Jersey Law Against Discrimination (NJLAD). The ruling affirmed a March 2019 decision by a state appellate court.
The plaintiff worked for the defendant as a funeral director. After about two years of employment, he was diagnosed with cancer. His doctor prescribed medical marijuana. The defendant fired him after he was involved in an automobile accident in which marijuana influence was not a factor.
Unlike New York’s CCA, the CUA states that it does not necessarily “require…an employer to accommodate the medical use of marijuana in any workplace.” N.J. Rev. Stat. § 24:6I-14. The court had to assess how this provision interacts with the NJLAD’s prohibition on disability discrimination. See id. at §§ 10:5-4.1, 10:5-5(q), 10:5-12(a). The court ruled that this provision of the CUA does not bar a lawsuit under the NJLAD. This ruling allows the plaintiff’s case to proceed to discovery.
The disability discrimination lawyers at Phillips & Associates advocate for the rights of employees, former employees, and job applicants in New York City, helping them assert claims for unlawful workplace acts under federal, state, and municipal law. To schedule a free and confidential consultation to discuss your case, please contact us today online or at (212) 248-7431.