WHY THIS CASE IS IMPORTANT
The facts and issues in this case boil down to these two questions:
- May the statutory disability designation of firefighter Martin, and the anti-discrimination protections afforded him as a medical marijuana patient under PHL §3369 and New York State Human Rights Law (NYSHRL), be waived during contract negotiations and concessions codified in a 2018 CBA modification?
- If firefighter Martin’s disability status and anti-discrimination protections under PHL §3369 and the NYSHRL could not be waived, must the Court force the City of Buffalo and the Buffalo Fire Department to reinstate firefighter Martin to the exact same position, rank, seniority, salary, benefits, assignment, etc., that he occupied immediately before he was subjected to the first random drug test in December 2020?
This case looks to not only be the first of its kind in New York State but possibly one of the first in the nation involving the issue of whether the disability status and rights are subservient to and may be waived as part of the CBA process.
Through court filings, attorney David C. Holland, Esq. explains why firefighter Martin should prevail in this action in clear and easy-to-follow legal and factual analysis. Some of those filings are detailed below.
SPECIFIC LEGAL PROTECTION FOR MEDICAL MARIJUANA PATIENTS
New York’s “Compassionate Care Act” was enacted in 2014, which set up the state’s medical marijuana program and the extremely limited medical conditions that qualified for registration in that program. Under PHL §3369, a medical marijuana patient is deemed “disabled.” That statute expressly states that medical marijuana patients cannot be discriminated against for their disability or be subjected to adverse employment action solely because of their use of medical marijuana. Any discrimination or adverse employment action may be subject to a civil lawsuit for violations of the statute, NYSHRL, and Civil Law.
FIREFIGHTER MARTIN IS CERTIFIED AND REGISTERED AS A MEDICAL MARIJUANA PATIENT
Firefighter Martin was and is a certified and registered patient in the Compassionate Care Act medical marijuana program. Scott suffers from chronic pain related to back issues that traditional pharmacological interventions could not adequately address and symptoms that x-ray guided injections of Tramadol directly to his spine could not relieve. He was also diagnosed with Post Traumatic Stress Disorder (PTSD) stemming from his front lines combat exposure as well as the carnage and horrific human suffering he saw as an EMT with the Buffalo Fire Department. Treating his afflictions with medical cannabis brings him immediate relief and allows him to sleep through the night without terrors or pain.
As a medical marijuana patient, firefighter Martin was deemed to be disabled under PHL §3369 and protected under the NYSHRL, which prohibits his being subjected to any discrimination, suspension, and/or termination because of his medical marijuana use.
BFD’s SUSPENSION AND TERMINATION WERE ILLEGAL
Buffalo Fire Department’s suspension and termination of firefighter Martin pursuant to the CBA were illegal. Each adverse employment action was the direct result of positive tests for marijuana and, as such, violated the anti-discrimination protections under Public Health Law §3369 and the NYSHRL.
THE COLLECTIVE BARGAINING AGREEMENT AND 2011 RINALDO ARBITRATION AWARD
The City of Buffalo and the Buffalo Professional Fire Fighters Association entered into a CBA in 1984. That agreement has been amended many times over the ensuing decades.
A dispute over the terms of the CBA led to the 2011 Rinaldo Arbitration Award, in which the drug testing protocols and disciplinary procedures were established and are still followed today.
The Compassionate Care Act was enacted in 2014 and established the New York State medical marijuana program in which firefighter Martin was later enrolled. However, the drug testing protocols and disciplinary procedures established 3 years earlier in the Rinaldo Arbitration Award were not updated to provide for recognition and accommodation of medical marijuana patients like firefighter Martin.
As such, there was no provision in the drug testing protocols and procedures written 3 years prior to the state’s medical marijuana program’s enactment to recognize and accommodate firefighter Martin’s medical marijuana patient status. As such, he was unlawfully stripped of his disability status and legal protections under the PHL and NYSHRL, which were specifically drafted to protect him from any negative consequences for the positive drug tests, which led to his suspension and termination from his dream job with the Buffalo Fire Department.
THE CITY OF BUFFALO AS THE BARGAINING AGENT FOR THE BUFFALO FIRE DEPARTMENT READILY ADMITS THAT IT INTENTIONALLY WAIVED THE DISABILITY STATUS AND CORRESPONDING PROTECTIONS OF MEDICAL MARIJUANA PATIENTS IN THE 2018 MODIFICATIONS TO THE COLLECTIVE BARGAINING AGREEMENT
The City of Buffalo has filed papers with the Court in the pending Article 78 proceeding in which firefighter Martin seeks reinstatement. In their motion for summary judgment, the City readily admits that in the last round of negotiations and modifications to the CBA between the Buffalo Fire Department and Union, the City, as the contract negotiator for the Buffalo Fire Department, was aware of, considered, and rejected providing any recognition or accommodation for firefighters who were also medical marijuana patients. Further, Fire Commissioner Renaldo submitted a sworn affidavit where he explains his concerns about recognizing or making accommodation for a medical marijuana patient and provides reasons that allegedly justify the suspension and termination of firefighter Martin.
Attorney Holland points out that those reasons and justifications asserted in Renaldo’s affidavit attempt to insert a public safety exception into the PHL §3369 when the statute is silent on the issue. Holland cites not only the absence of such language in the relevant statutes, but also examines the legislative history of the Compassionate Care Act. More specifically, he cites the clear and unambiguous preamble to the Act and the “Purpose” provision, which expressly that the Compassionate Care Act “strike[s] strike the right balance between potentially relieving the pain and suffering of those in desperate need of a treatment and protecting the public against risks to its health and safety.”
Holland argues that in establishing that “proper balance,” the Legislature intentionally did not insert any occupational public safety exception, which Commissioner Renaldo otherwise attempts to read into the PHL statute to justify his unlawful discriminatory and adverse employment actions.
THE FEDERAL LAW PROHIBITING CANNABIS IS NOT ENFORCEABLE IN NEW YORK STATE AND CANNOT SERVE AS THE BASIS TO DENY RECOGNITION AND ACCOMMODATION OF FIREFIGHTER MARTIN’S DISABILITY STATUS AND USE OF MEDICAL MARIJUANA
The City of Buffalo has also tried to justify its lack of recognition and accommodation of firefighter Martin by citing a limited exception found in PHL §3369. More specifically, Commissioner Renaldo’s affidavit cites that an employer is not required to accommodate an employee’s medical marijuana use if doing so will cause the employer to violate federal law or otherwise jeopardize a federal contract or grant. The Commissioner explains that the Buffalo Fire Department receives federal FEMA-related grants and, as a condition of those grants, must abide by the federal Drug-Free Workplace Act (DFWA). Renaldo states that permitting firefighter Martin to be employed as a medical marijuana patient violates federal law, threatens those grants from FEMA, and fails to abide by the DFWA.
Attorney Holland lays out the legal and factual bases for why the conclusions of Commissioner Renaldo are erroneous.
First, that marijuana metabolite may be found in Martin’s system is not the equivalent of carrying his medicine into the workplace and potentially violating the DFWA. Second, firefighter Martin only uses his medical cannabis at home, at night, and does not arrive at work impaired or in possession of his medicine. Third, if the DFWA is not implicated, then the FEMA grants are not inviolated.
Attorney Holland lays out in detail how the federal law prohibiting marijuana use or possession for any reason is not enforceable in the state of New York and therefore cannot serve as the basis for Commissioner Renaldo and the City of Buffalo to invoke the federal law provision of PHL §3369. Holland explains the legal framework of the federal prohibition of cannabis under the Controlled Substances Act. The brief then lays out how, since 2014, Congress has passed spending appropriations amendments that handcuff the Executive Branch and federal law enforcement from using federal funds to investigate or prosecute any medical marijuana provider or patient who are compliant with their state’s medical cannabis program and laws. The last such amendment was signed into law by President Trump in 2019 and was in effect when firefighter Martin was suspended and later terminated. The brief cites the case of U.S. v. McIntosh, which addressed the enforceability of those spending appropriations amendments and ruled that a criminal prosecution could not be brought because the defendant was in compliance with the state’s medical marijuana program.
Attorney Holland argues that due to federal court recognition of Congress’s intent to prevent the enforcement of federal cannabis prohibition in states that have established medical marijuana programs (including a quote from Justice Clarence Thomas in a recent case called Standing Akimbo), the federal law is not enforceable in New York.
Consequently, the City of Buffalo and Commissioner Renaldo cannot invoke the federal law exception of PHL §3369 and are without any legal safe harbor to otherwise avoid being found guilty of unlawful discrimination and adverse employment actions taken because of firefighter Martin’s status as a medical marijuana patient.
THE CITY OF BUFFALO AND THE FIRE DEPARTMENT SHOULD BE FOUND GUILTY OF UNLAWFUL CONDUCT AND ORDERED TO REINSTATE FIREFIGHTER MARTIN TO THE EXACT POSITION HE OCCUPIED IMMEDIATELY BEFORE TAKING THE DECEMBER 2020 DRUG TEST
Attorney Holland concludes in his court filings that the City of Buffalo and the Buffalo Fire Department should be ordered to reinstate firefighter Martin to the exact same position and status that he occupied immediately before he took the random drug test in December 2020.
The matter of Scott Martin v. City of Buffalo and the Buffalo Fire Department is still pending.
For more information about David C. Holland and his legal practice, visit www.hollandlitigation.com.
