Subject to signature by Governor Andrew Cuomo, New York is set to become the twenty-third state to legalize medical marihuana. Importantly, the New York legislation is limited to non-smokable forms of marihuana. Further, the bill is initially limited to persons with the following “severe debilitating or life-threatening conditions”: cancer, HIV or AIDS, ALS, Parkinson’s disease, multiple sclerosis, spinal cord damage, epilepsy, inflammatory bowel disease, neuropathies, and Huntington’s disease. The New York Commissioner of Health is authorized to consider and add additional conditions to this list. The new law, if passed, also may be suspended or terminated by the governor at any time, and it is subject to a seven-year sunset provision.

Of importance to New York employers, the legislation specifically states that being a “certified patient” with any covered condition automatically deems an employee to be “disabled” under the New York State Human Rights Law. However, the bill expressly permits employers to enforce a policy prohibiting employees from performing their job duties while impaired by a controlled substance. Further, the bill does not require that employers violate federal law or do anything to cause the loss of a federal contract or funding.

Governor Cuomo supported the final version of the legislation and he is expected to sign it into law. Prior to the law becoming effective, we advise New York employers to review their existing workplace policies and consider expressly prohibiting the use of controlled substances in the workplace. Further, New York employers should be aware that employees who meet the approved conditions to use medical marihuana are per se deemed disabled. Employers may therefore want to carefully consider their response to any disability accommodation requests from covered employees.

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