Jacob Redmond
Well-Known Member
New York has come around to the concept of medical marijuana, becoming the 23rd state to legalize its use in some form.
Gov. Andrew Cuomo signed the state's Compassionate Care Act last year and rules and regulations governing the manufacturing, prescribing, distribution and sale of the product are expected to be adopted over the next year or so.
It's an emerging industry that could present vast opportunities for attorneys and contiguous businesses, according to Matthew Miller, a partner at Rupp Baase Pfalzgraf & Cunningham in Buffalo.
"States are finally seeing that there is and can be a benefit to controlled and proper use of this," said Miller, whose practice includes business litigation and employment law. "It has its pitfalls and detractors, but done the right way, I think we're going toward further legalization."
In the meantime, it's creating a world of uncertainty for business owners, he said.
After the comment period ends for the proposed regulations, the state Department of Health will go through a lengthy process of revising, amending or keeping intact rules that will eventually become law. Once the CCA is adopted, the application process can begin for licenses to distribute and manufacture medical marijuana. That's when the impact will truly begin to be felt, Miller said.
He's been advising employers to get ahead of the law now. Though nearly half of the states in the country have legalized medical marijuana in some form, at the federal level it's an illegal substance, whether for medicinal or recreational use. He said that could create conflict in the workplace.
"The resulting uncertainty for business owners has created anxiety about how they will have to address employees in New York when it becomes law and they start seeing employees who are certified users," Miller said. "It's certainly an emerging market not only for people involved in the marijuana industry but also for employers."
Marnie Smith of Harris Beach said some employers have expressed interest in updating policies in preparation for when an employee with medical marijuana needs comes through their door.
"I think once the regulations become finalized, we may see more of this talk," said Smith, who practices in the labor and employment group. "I feel like a lot of the questions maybe just haven't come down the pike yet, but they're certainly coming. In the states where the laws have been around longer, we already have cases on it."
Erin Torcello, an attorney at Bond Schoeneck & King, doesn't see the final regulations taking effect until 2016. She said the subject seems to be viewed more as affecting the community at large rather than how this may affect the workplace.
"It really hasn't come to the forefront of employers' minds, but that being said, they should probably start thinking about it," Torcello said. "There's a number of things that employers will have to think about, in regard to their drug testing policy, that should really be in place for when this statute is finally implemented."
The CCA is stricter than other states' laws in its protections for certified patients and in how medical marijuana is made and distributed. According to proposed regulations, it must be ingested – not smoked – and must not be taken while in the workplace. Patients will have to carry around a registration ID card and have a valid prescription. Those who qualify for medical marijuana, as of now, include people suffering from serious conditions with a symptom related to that illness, according to Torcello.
Unlike in some states, the proposed law in New York has a provision that specifically addresses the use of medical marijuana in the employment context, said Melanie Beardsley of Hodgson Russ.
A non-discrimination provision allows a certified patient to be deemed to have a disability under the New York Human Rights Law, which puts them in a protected class, she said. Beardsley added that employers should be considering accommodating a person with a disability in accordance with the law.
"That is something that, regardless of if employers want to deal with this or not, they're possibly going to be impacted in some way, shape or form if they have certain employees with conditions that make them eligible for medical marijuana when it comes into New York state," said Beardsley, who represents private and public sector employers before state and federal agencies.
An employer cannot make a decision based on an employee's use of medical marijuana when they're protected as having a disability, Smith said. Employers have an obligation to engage in an interactive process with these employees and potentially modify their work schedule and breaks, she said, if that's what is needed to facilitate the use of medical marijuana.
Beardsley has been examining the tension between the state and federal laws. The Americans with Disabilities Act excludes disabilities based on illegal drug use, so she wonders how that will conflict with provisions in the state's law. If anything, she said, it sounds like patients would have more of a chance to be covered under the New York's Human Rights Law.
Said Beardsley: "I think that is going to be something interesting to see – whether the federal law changes whatsoever, especially when federal agencies like the EEOC look at this closer and take a position on it."
On the flip side, the proposed law allows employers to continue a policy of a drug-free workplace, which means they can drug test and discipline an employee if they're impaired in the workplace. It's still unclear what that may mean for employees certified to use medical marijuana, Miller said.
"You can imagine a scenario where an employee, who's a certified user, comes to work impaired, tests positive and says, 'Wait a second, here's my card. I'm a certified patient.' Does the employer then have to go through all of the interactive processes required by the Americans with Disabilities Act," he said. "Are they prevented from disciplining that employee solely by the New York State Human Rights Law or can they say, 'You had a positive drug test. We know that you're impaired, so you're fired.' "
Beardsley said there's a lack of clarity in the proposed law regarding what an employer can do if the employee's work is affected by medical marijuana and then tests positive on a drug screening.
She said: "The question becomes, regardless of whether or not they have that medical marijuana card, can the employer apply their zero tolerance for illegal drug policy across the board consistently, including to the individual taking medical marijuana, and therefore discharge that person if they test positive?"
What is certain is that employers do not have to allow employees who are impaired to work, especially when safety is in question, Smith said.
"If an employee comes in and you can tell that they're impaired, of course you don't have to allow them to operate heavy machinery," she said. "There's that really fine line between not discriminating on the basis of what they do in their free time versus what they do two hours before they come into work or during the workday."
Defining Impairment
Torcello said employees lose their protections if they're impaired at work, but the CCCA does not define impairment. She added that unless there are steps taken to do that, employers will be left to their own device. And that may require extra training.
Another question centers on determining who to drug test, according to Beardsley. There's a difference between being impaired by marijuana and having metabolites from the drug remaining in the person's system. She said there may be an argument that the employee is going to test positive no matter what because they've been prescribed the drug and frequently use it.
"I'm a little concerned about the practical application of that provision. How is it really going to work in the workplace?" she said. "How do we differentiate for the employer to determine the difference?"
Smith said marijuana can stay in one's system for months, so they could test positive without being impaired. Drug-testing policies come up often in her discussions with clients. Employers ask: Can we require it? What do we do with a positive result?
"What we prefer to see is an employer that's gotten out ahead and put a policy out there," she said. "Something to the effect of: If the employer has reason to believe you're under the influence and it's impairing your ability to do the job, then you'll be sent for drug testing, and have the employee sign off on that policy as part of the employee handbook."
Torcello said there are three common drug testing policies: reasonable suspicion, random and zero tolerance.
If a test is administered after an employer deems a worker is impaired and it's positive, the law allows for discipline, including termination. Random tests can be given but a positive test may not allow for disciplinary action because it lacks a real-time evaluation, while zero-tolerance policies may have to be altered to make an exception for employees utilizing medical marijuana.
"It's not like alcohol, in that you can simply test for it and know what's in the person's system and impairing them. Because marijuana can last in your system much longer, it impacts the time you're impaired," Torcello said. "There will be some trial by fire. Hopefully the final regulations that they come up with will help."
What's Ahead
Despite the inevitable conflicts, Miller said there are some best practices. He suggests employers communicate with the workforce, especially those who are certified medical marijuana patients; keep accurate records; and, if necessary, figure out a reasonable accommodation so affected workers can perform their job responsibilities.
Miller doesn't foresee cases in the court system for quite some time, but court decisions in other states can be referenced to see how future cases in New York might be treated. In states such as Colorado, Oregon and California, courts have upheld employers' rights to discipline or terminate someone for being impaired at work, even though he or she was a certified patient.
In those cases, the rulings were made on the basis that the workers didn't have a simple cause of action against the employer, Smith said.
While Miller typically represents management, he also finds himself working with businesses and vendors interested in licensing to become distributors of medicinal marijuana. In fact, his involvement led to a speaking engagement at the Cannabis World Congress and Business Exposition set for June 17-19 at Jacob Javits Convention Center in New York City.
"It's incredibly energizing for me. It's something that's becoming more of a regular thing," Miller said. "It should be interesting to see how it evolves."
News Moderator: Jacob Redmond 420 MAGAZINE ®
Full Article: Medical marijuana: Employers hash out workplace policies - Buffalo - Buffalo Business First
Author: Michael Petro
Contact: mpetro@bizjournals.com
Photo Credit: None Found
Website: Business News - The Business Journals
Gov. Andrew Cuomo signed the state's Compassionate Care Act last year and rules and regulations governing the manufacturing, prescribing, distribution and sale of the product are expected to be adopted over the next year or so.
It's an emerging industry that could present vast opportunities for attorneys and contiguous businesses, according to Matthew Miller, a partner at Rupp Baase Pfalzgraf & Cunningham in Buffalo.
"States are finally seeing that there is and can be a benefit to controlled and proper use of this," said Miller, whose practice includes business litigation and employment law. "It has its pitfalls and detractors, but done the right way, I think we're going toward further legalization."
In the meantime, it's creating a world of uncertainty for business owners, he said.
After the comment period ends for the proposed regulations, the state Department of Health will go through a lengthy process of revising, amending or keeping intact rules that will eventually become law. Once the CCA is adopted, the application process can begin for licenses to distribute and manufacture medical marijuana. That's when the impact will truly begin to be felt, Miller said.
He's been advising employers to get ahead of the law now. Though nearly half of the states in the country have legalized medical marijuana in some form, at the federal level it's an illegal substance, whether for medicinal or recreational use. He said that could create conflict in the workplace.
"The resulting uncertainty for business owners has created anxiety about how they will have to address employees in New York when it becomes law and they start seeing employees who are certified users," Miller said. "It's certainly an emerging market not only for people involved in the marijuana industry but also for employers."
Marnie Smith of Harris Beach said some employers have expressed interest in updating policies in preparation for when an employee with medical marijuana needs comes through their door.
"I think once the regulations become finalized, we may see more of this talk," said Smith, who practices in the labor and employment group. "I feel like a lot of the questions maybe just haven't come down the pike yet, but they're certainly coming. In the states where the laws have been around longer, we already have cases on it."
Erin Torcello, an attorney at Bond Schoeneck & King, doesn't see the final regulations taking effect until 2016. She said the subject seems to be viewed more as affecting the community at large rather than how this may affect the workplace.
"It really hasn't come to the forefront of employers' minds, but that being said, they should probably start thinking about it," Torcello said. "There's a number of things that employers will have to think about, in regard to their drug testing policy, that should really be in place for when this statute is finally implemented."
The CCA is stricter than other states' laws in its protections for certified patients and in how medical marijuana is made and distributed. According to proposed regulations, it must be ingested – not smoked – and must not be taken while in the workplace. Patients will have to carry around a registration ID card and have a valid prescription. Those who qualify for medical marijuana, as of now, include people suffering from serious conditions with a symptom related to that illness, according to Torcello.
Unlike in some states, the proposed law in New York has a provision that specifically addresses the use of medical marijuana in the employment context, said Melanie Beardsley of Hodgson Russ.
A non-discrimination provision allows a certified patient to be deemed to have a disability under the New York Human Rights Law, which puts them in a protected class, she said. Beardsley added that employers should be considering accommodating a person with a disability in accordance with the law.
"That is something that, regardless of if employers want to deal with this or not, they're possibly going to be impacted in some way, shape or form if they have certain employees with conditions that make them eligible for medical marijuana when it comes into New York state," said Beardsley, who represents private and public sector employers before state and federal agencies.
An employer cannot make a decision based on an employee's use of medical marijuana when they're protected as having a disability, Smith said. Employers have an obligation to engage in an interactive process with these employees and potentially modify their work schedule and breaks, she said, if that's what is needed to facilitate the use of medical marijuana.
Beardsley has been examining the tension between the state and federal laws. The Americans with Disabilities Act excludes disabilities based on illegal drug use, so she wonders how that will conflict with provisions in the state's law. If anything, she said, it sounds like patients would have more of a chance to be covered under the New York's Human Rights Law.
Said Beardsley: "I think that is going to be something interesting to see – whether the federal law changes whatsoever, especially when federal agencies like the EEOC look at this closer and take a position on it."
On the flip side, the proposed law allows employers to continue a policy of a drug-free workplace, which means they can drug test and discipline an employee if they're impaired in the workplace. It's still unclear what that may mean for employees certified to use medical marijuana, Miller said.
"You can imagine a scenario where an employee, who's a certified user, comes to work impaired, tests positive and says, 'Wait a second, here's my card. I'm a certified patient.' Does the employer then have to go through all of the interactive processes required by the Americans with Disabilities Act," he said. "Are they prevented from disciplining that employee solely by the New York State Human Rights Law or can they say, 'You had a positive drug test. We know that you're impaired, so you're fired.' "
Beardsley said there's a lack of clarity in the proposed law regarding what an employer can do if the employee's work is affected by medical marijuana and then tests positive on a drug screening.
She said: "The question becomes, regardless of whether or not they have that medical marijuana card, can the employer apply their zero tolerance for illegal drug policy across the board consistently, including to the individual taking medical marijuana, and therefore discharge that person if they test positive?"
What is certain is that employers do not have to allow employees who are impaired to work, especially when safety is in question, Smith said.
"If an employee comes in and you can tell that they're impaired, of course you don't have to allow them to operate heavy machinery," she said. "There's that really fine line between not discriminating on the basis of what they do in their free time versus what they do two hours before they come into work or during the workday."
Defining Impairment
Torcello said employees lose their protections if they're impaired at work, but the CCCA does not define impairment. She added that unless there are steps taken to do that, employers will be left to their own device. And that may require extra training.
Another question centers on determining who to drug test, according to Beardsley. There's a difference between being impaired by marijuana and having metabolites from the drug remaining in the person's system. She said there may be an argument that the employee is going to test positive no matter what because they've been prescribed the drug and frequently use it.
"I'm a little concerned about the practical application of that provision. How is it really going to work in the workplace?" she said. "How do we differentiate for the employer to determine the difference?"
Smith said marijuana can stay in one's system for months, so they could test positive without being impaired. Drug-testing policies come up often in her discussions with clients. Employers ask: Can we require it? What do we do with a positive result?
"What we prefer to see is an employer that's gotten out ahead and put a policy out there," she said. "Something to the effect of: If the employer has reason to believe you're under the influence and it's impairing your ability to do the job, then you'll be sent for drug testing, and have the employee sign off on that policy as part of the employee handbook."
Torcello said there are three common drug testing policies: reasonable suspicion, random and zero tolerance.
If a test is administered after an employer deems a worker is impaired and it's positive, the law allows for discipline, including termination. Random tests can be given but a positive test may not allow for disciplinary action because it lacks a real-time evaluation, while zero-tolerance policies may have to be altered to make an exception for employees utilizing medical marijuana.
"It's not like alcohol, in that you can simply test for it and know what's in the person's system and impairing them. Because marijuana can last in your system much longer, it impacts the time you're impaired," Torcello said. "There will be some trial by fire. Hopefully the final regulations that they come up with will help."
What's Ahead
Despite the inevitable conflicts, Miller said there are some best practices. He suggests employers communicate with the workforce, especially those who are certified medical marijuana patients; keep accurate records; and, if necessary, figure out a reasonable accommodation so affected workers can perform their job responsibilities.
Miller doesn't foresee cases in the court system for quite some time, but court decisions in other states can be referenced to see how future cases in New York might be treated. In states such as Colorado, Oregon and California, courts have upheld employers' rights to discipline or terminate someone for being impaired at work, even though he or she was a certified patient.
In those cases, the rulings were made on the basis that the workers didn't have a simple cause of action against the employer, Smith said.
While Miller typically represents management, he also finds himself working with businesses and vendors interested in licensing to become distributors of medicinal marijuana. In fact, his involvement led to a speaking engagement at the Cannabis World Congress and Business Exposition set for June 17-19 at Jacob Javits Convention Center in New York City.
"It's incredibly energizing for me. It's something that's becoming more of a regular thing," Miller said. "It should be interesting to see how it evolves."
News Moderator: Jacob Redmond 420 MAGAZINE ®
Full Article: Medical marijuana: Employers hash out workplace policies - Buffalo - Buffalo Business First
Author: Michael Petro
Contact: mpetro@bizjournals.com
Photo Credit: None Found
Website: Business News - The Business Journals
