Medical marijuana was legalized for use in New York in 2014 and Governor Cuomo has indicated that recreational legalization could soon follow. Although employees there are prohibited from testing job applicants for marijuana, they can test current employees. But what happens if an employee tests positive at work while having a prescription for medical marijuana? The ruling in Gordon v. Consolidated Edison, Inc., determined that a financial analyst who was terminated by Con Edison after a positive drug test could sue the utility company for disability discrimination. In the situation, the plaintiff was advised by a doctor that she would be a suitable candidate for medical marijuana to treat her irritable bowel disease. She made an appointment with the New York State Department of Health’s Medical Marijuana Program to be certified after claiming marijuana instantly relieved her symptoms. She was tested at work before becoming certified and, because of a positive test, was found to have violated the company’s drug policy and was terminated from her position. Employers in similar situations should consider the nature of the employee’s job and whether it is a safety-sensitive occupation, whether there have been attendance issues or errors in the employee’s job and whether the cannabis has impacted work performance.
