NY state court opens door to precertified use of medical marijuana

The Compassionate Care Act (CCA), part of the Public Health Law (PHL), gives protected disability status to individuals who are found to benefit from medical marijuana. The protected status was thought to turn on the certification for the medical marijuana. An individual who has a certification to use medical marijuana is protected under the law, while an individual who lacks the certification is not. A recent decision from the Appellate Division, First Department, however, held the individual’s protected status may commence even before the actual certification. The decision affects all New York employers that screen for marijuana.

Background

Kathleen May Gordon worked for Consolidated Edison (Con Ed) as a financial analyst on a probationary basis. She suffered from irritable bowel disease (IBD), one of the conditions covered by the CCA.

In December 2016, a consulting physician advised Gordon she would be a suitable candidate for medical marijuana to help with the IBD symptoms. Before receiving any formal certification to use medical certification, however, she used marijuana, which relieved the IBD symptoms. Shortly thereafter, she tested positive for marijuana during a random drug test at Con Ed.

After the drug test, Gordon received her certification to use medical marijuana. In early January 2017, she was discharged based on Con Ed’s determination she wasn’t a certified medical marijuana patient at the time of her use and wasn’t eligible for an accommodation.