Over the past decade, numerous organizations have presented studies showing that the use of marijuana, specifically the THC found in marijuana, is helpful for controlling pain, nausea and vomiting. It has been effective in treating those suffering from cancer, glaucoma, HIV/AIDs and multiple sclerosis.
States have increasingly legalized the use of marijuana, at a minimum, for medical purposes. As of the writing of this article, 35 states and Washington, D.C. permit the use of marijuana for medicinal purposes. Of those, 15 states and Washington, D.C. have also legalized the use of marijuana for recreational purposes.
Federal Approach to Marijuana
While possessing, selling, distributing or prescribing marijuana remains illegal at the federal level, and therefore in conflict with a number of state laws, the federal government has taken different approaches in handling marijuana prosecutions over the past decade. President Obama urged federal prosecutors not to prosecute those who distributed medical marijuana in states where it was legal.
Under the Trump administration, the Marijuana Enforcement Memorandum urged federal prosecutors to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”
President Biden has expressed support for the decriminalization of marijana but it is too early into his presidency for any guidance to have been issued.
New York State’s Approach to Marijuana
In states where medical marijuana is legal, employees and employers are wrestling with the conflict between federal and state laws. Even in states where marijuana use is legal, it is clear that employees are not permitted to consume marjuana, or be impaired, while at work.
Some states, like New York, have specific protections for employees who use marijuana but those protections are strictly for off-duty conduct; they do not permit the use of marijuana while on the job. Employers are still permitted to discipline or fire employees who are impaired while performing their duties.
New York state’s Compassionate Care Act amended New York State’s Human Right Law to allow employees suffering from certain medical conditions articulated in the Act to legally use marijuana for medicinal purposes.
- HIV or AIDS,
- multiple sclerosis,
- post-traumatic stress disorder
- and inflammatory bowel disease.
The Act however makes it clear that employers are expected to treat medical marijuana users in the same way as they would disabled employees. Therefore, employers must engage in the interactive process with medical marijuana users, meaning they need to have a conversation about the employee’s medical condition and how the use of medical marijuana affects their job performance. There must also be a conversation about reasonable accommodations. Are there any reasonable accommodations that exist that would allow the employee to perform their job duties while still using medical marijuana? If so, then the employee should be accommodated like any other disabled employee would be.
In March of 2021, marijuana was legalized for recreational purposes in New York. The Marijuana Regulation and Taxation Act allows adults to possess and consume certain amounts of marijuana in public. The act prohibits smoking marijuana in the workplace. While this law is too new to understand what impact it will have on employees and employers, the new law makes it illegal for employers to fail to hire, or fire, employees because of their “legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or property.” New York Labor Law 201-d(1)(b).
Laws regarding marijuana use in the United States are constantly changing. It would be wise for both employers and employees to consult with an attorney who can advise them of their specific legal rights.
This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
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