The Governor of New York signed on July 7 New York’s Compassionate Care Act, which will permit limited use of medical marijuana by individuals suffering from covered medical conditions, making New York the 23rd state to legalize the use of medical marijuana.
Under the law, no more than five private organizations in the state will be licensed for the production and distribution of medical marijuana through up to four regulated dispensaries per organization. The dispensaries must be wholly owned and operated by such licensed organization. Additionally, in order to obtain and maintain its certification, each organization must enter into a labor peace agreement with a bona fide labor organization representing its employees.
Of relevance to employers, New York is one of only a few states that deems covered individuals (“certified patients”) to be “disabled” categorically under the state human rights laws. To be covered, individuals must suffer from a “serious condition,” defined currently as having one of the following “severe debilitating or life-threatening conditions” (which the legislature has concluded is likely to respond favorably to the therapeutic or palliative benefits of marijuana):
- amyotrophic lateral sclerosis (ALS)
- Parkinson’s disease
- multiple sclerosis (MS)
- damage to the nervous tissue of the spinal cord with neurological indications of intractable spasticity
- inflammatory bowel disease
- Huntington’s disease
Individuals must be experiencing specific symptoms of a covered condition in order to be deemed to have a “serious condition.” Individuals deemed to be “certified patients” (or their designated caregivers) can obtain a maximum of 30 days’ supply of marijuana (in a dosage determined by agency rulemaking or a certified physician) at a time, with refills permitted one week before the supply runs out. Marijuana can only be possessed in its original packaging (except when being used), and it cannot be smoked, consumed, vaporized, or grown in a public place. Moreover, smoking is not considered a certified or lawful medical use under any circumstances.
While the law is effective immediately, the New York State Department of Health must promulgate regulations and has been given up to 18 months to issue or make effective registry identification cards for certified patients and designated caregivers, which will be necessary for obtaining medical marijuana.
The law does not prohibit employers from creating or enforcing existing policies that prohibit employees from performing their employment duties while impaired by medical marijuana, and it is not intended to result in violation of federal law or cause an employer’s federal contracts or funding to be jeopardized. Nevertheless, the law will create challenges for employers as it relates to drug testing policies since it is unclear whether an employer must excuse or accommodate a positive drug test where the employee is a certified patient taking marijuana in approved forms. Additionally, because covered patients are deemed “disabled” under the Human Rights Law, employers may need to engage in an interactive process with employees who reveal medical marijuana use to discuss potential accommodations.