Medical and Recreational Cannabis (Marijuana) Use and Employment in New York
Medical and Recreational Cannabis (Marijuana) Use and Employment in New York – Prohibition, Discrimination, Termination
- My employer prohibits me from using cannabis, even though I have a prescription.
- I have legally purchased and used marijuana; it is legal in New York, but my employer now threatens to terminate me.
- My supervisor told me that I was going to be terminated if I used my prescribed cannabis.
Many employees encounter one of these or similar issues related to the use of cannabis (marijuana) and their jobs. Some people wonder whether it is illegal for employers to prohibit employees from using prescribed or legally purchased cannabis. Since more states are moving towards marijuana legalization, you may want to know what employment law says about it. This article discusses current regulations on cannabis use by employees.
Legislative Framework
At the federal level, marijuana is a prohibited drug under the Federal Controlled Substances Act. However, in 38 states, cannabis is legal for medical use, and in addition to that, 24 states, two territories, and D.C. have legalized small amounts of cannabis for adult recreational use. Marijuana for medical and recreational use is legal in New York state and New York City.
Americans with Disabilities Act of 1990
My doctor prescribed me to take marijuana as a medication for my disability. Am I protected under the federal Americans with Disabilities Act ADA?
Unfortunately, the ADA does not protect against discrimination based on the use of marijuana, even if an employee uses it to treat symptoms of his/her disability. § 12114 of the ADA excludes from qualified individuals with disabilities, protected under the Act, those who engage in the illegal use of drugs. Although the ADA provides an explicit exception for drug use under the supervision of a physician, federal law still prohibits the use, possession, and distribution of marijuana, even for medical purposes. See Eccleston v. City of Waterbury, 2021 U.S. Dist. LEXIS 52835 (D. Conn. 2021).
Similarly, there is no other federal law that would protect an employee from adverse employment action based on the fact of her marijuana use.
New York State Laws regarding Cannabis Use on Employee’s Own Time.
State law may protect you from discrimination based on cannabis use, but it depends on the jurisdiction and provisions of the specific law. This protection from discrimination may apply only to the use of medical cannabis or to both medical and recreational. In New York, the protections apply to both medical and recreational marijuana use.
In New York, pursuant to § 201-d of the Labor Law, it is unlawful for an employer to refuse to hire, employ, or license someone, or to discharge an employee or otherwise discriminate against an individual in compensation, promotion, or terms, conditions or privileges of employment, as a result of an individual’s use of cannabis in accordance with state law outside of work hours, off of the employer’s premises, and without use of the employer’s equipment or other property. Meanwhile, there are certain exceptions when employers can prohibit an employee from engaging in cannabis use, such as where an employer is required to do so by law or regulations or where an employee is impaired by the use of cannabis while working, and this decreases his performance.
Similarly, in the Arizona Medical Marijuana Act was enacted by Arizona voters by ballot initiative. Among other things, it includes an anti-discrimination provision that prohibits employers from discriminating against registered qualifying patients’ positive drug tests for marijuana components. See Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 774 (D. Ariz. 2019). Therefore, it is illegal for employers in Arizona to discriminate (i.e., to take adverse employment action, to terminate, etc.) employees because they use medical cannabis.
On the other hand, recreational and medical marijuana use is legal in Ohio but there are no protections for employees. In Ohio, there is no such protection under Ohio’s Civil Rights Act, R.C. § 4112 et seq., and Ohio laws legalizing medical and recreational adult marijuana use. Thus, Ohio Revised Code § 3796.28(C) explicitly states that it is not a violation of Ohio’s Civil Rights Act, if an employer discharges, refuses to hire, or otherwise discriminates against a person because of that person’s use of medical marijuana if the person’s use of medical marijuana is in violation of the employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.
If you believe that you have been discriminated against for the use of prescribed or recreational marijuana, you should talk to a New York City employment attorney to determine your further options. Contact your employment lawyers in NYC and Mansell Law to see if your rights have been violated.
