Can Employers Discriminate Employees Against Medical Marijuana Usage?

How a New York collective bargaining agreement cost a firefighter his job

Despite medical cannabis being legalized in New York State in 2014 and adult-use cannabis legalized in 2021, the state’s employment law and human resources policies have failed to keep pace with these changes. 

According to the Office of Cannabis Management, as of March 2022, 126,000 patients are registered with the state’s medical cannabis program. When New York’s Compassionate Care Act was signed into law in 2014 and established the state’s medical-marijuana program, it was one of the country's most restrictive medical cannabis programs. 

Fast forward eight years to January 2022, the state has vastly expanded the list of qualifying medical conditions to allow health care professionals, who are licensed to prescribe controlled substances, to recommend medical cannabis to a patient whom they believe would clinically benefit from its incorporation into their health care regimen. 

Simultaneously, New York’s Department of Labor has released employer guidelines about when an employee can and can’t be held accountable for cannabis use, regardless of whether for medical or personal purposes, after the adult use of marijuana was legalized in March 2021. 

Despite these advancements, employment law and employer policies have not progressed to keep in tandem with these new laws. This is especially true regarding employees subject to Collective Bargaining Agreements (CBA). No one has felt the failure of a CBA to keep pace with these policies as Scott Martin, a front-line veteran of the wars in Afghanistan and Iraq and near 12-year veteran as a paramedic and firefighter with the Buffalo Fire Department. 

Due to injuries that he sustained in combat and on the job, Martin suffered from debilitating back pain and was unsuccessfully treated by opioids and x-ray-guided spinal injections. It was only when his health care provider suggested that he try medical marijuana did Martin finally find effective and lasting relief for his pain and post-traumatic stress disorder (PTSD), and allowed him to work more effectively and comfortably to bring life-saving relief to the citizens of Buffalo. 

Under New York law, being a qualified and certified medical marijuana patient deemed Martin to be ‘disabled,’ so he was protected by law from discrimination or any adverse employment action being taken against him solely because of his status as a patient and use of medical marijuana. 

Despite the well-known benefits of medical marijuana, the CBA between the Buffalo Fire Department and the Fire Fighters Union was not updated to account for this legalized medical alternative treatment. As a result, Scott Martin was wrongfully suspended and later terminated from the Buffalo Fire Department for failing a random drug test after testing positive for medical marijuana. 

Martin is suing the City of Buffalo and the fire department to get his job back, along with reinstatement to his rank, seniority, and backpay. This case is the first of its kind in New York State and one of the first in the nation involving the issue of whether the disability status and rights created by the medical marijuana statute are subservient to and may be waived as part of the CBA process.

Martin’s pending case against the City of Buffalo comes down to one simple question: can a medical marijuana patient and employee, whose use of that medicine is protected by law, be fired for the legal use of medical marijuana? 

Martin’s Wrongful Termination

On December 22, 2020, Fire Commissioner William Renaldo informed Martin that he was suspended without pay for testing positive for marijuana during a random workplace drug test a week earlier. Martin, who had disclosed his patient status and produced his state registration identification card prior to providing his sample, was then forced under the terms of the CBA to seek counseling through the Employment Assistance Plan for his use of medical marijuana, even though he was a qualified and certified medical marijuana patient with New York’s Department of Health. 

Martin was further informed that he would have to pass a return-to-duty drug test before coming back to work; effectively, he was being told by his supervisor that under the terms of the CBA, he had to stop using his medicine. On February 23, 2021, Martin was fired from the Buffalo Fire Department after the second urine sample was positive for marijuana metabolite and, as such, failed to provide a clean back to work sample as required by the CBA.

In March 2021, a grievance was filed through Martin’s union, citing numerous violations by the Fire Department's CBA, including the fact that the second drug test was never sent to, reviewed, or confirmed by a medical review officer as required in their CBA. 

However, the union was not able to raise or otherwise invoke the anti-discrimination and protected status of Martin under the Compassionate Care Act because the CBA had not been updated to account for the advent of medical marijuana as a legal alternative medical regimen. As such, they could not even mention Scott’s certified and registered status as a medical patient.  

Buffalo’s Rebuttal

In response to Martin’s lawsuit seeking reinstatement, Buffalo Fire Commissioner Renaldo filed an affidavit in July 2021, stating the fire department’s drug policy, as determined in a 2011 arbitration award, had to be upheld even though it was passed three years before New York legalized medical marijuana. Renaldo also argued that the Fire Department receives federal Federal Emergency Management Agency (FEMA)-related grants and, as a condition of those grants, must abide by the federal Drug-Free Workplace Act (DFWA). 

Therefore, he reasoned that permitting Martin to be employed while a medical marijuana patient violates federal law, threatens those grants from FEMA, and fails to abide by the DFWA and, as such, his suspension and later termination were both justified and legal. 

Scott Martin believes differently and has put in extensive papers arguing why the commissioner’s reasons are not only misguided, but they are also legally untenable. Martin argues not only that the 2014 Compassionate Care Act provided specific legal rights and protections around his disabled status, but further, that he never carried marijuana onto his work premises or came to work impaired. 

Rather, he solely uses it at night before going to bed to help manage his PTSD and pain issues. His body is not the vessel that carries an illegal drug into the workplace and, therefore, never violated the DFWA because he is otherwise a protected medical patient. 

Another argument that Martin makes clear is that the mere fact that he tested positive for marijuana, which he disclosed that he would because of his use of medical marijuana, is the value of a positive test in and of itself. More specifically, he argues that unlike alcohol, where traces of its consumption disappear within 24 hours because it is water-soluble, cannabis is fat-soluble, meaning that traces of its consumption can be found 30 days later. 

As such, the positive tests being cited as grounds for his termination did not in any way prove that he was impaired from his medical cannabis consumption just because he tested positive.

Scott Martin’s case is of real significance across the state of New York. Big employers and counties deal almost exclusively with employment-related issues through collective bargaining. Rather than negotiating with an individual prospective employee, these organizations do it over a whole class of people – ranging from several dozen to tens of thousands of employees. 

While bargaining away some rights is a natural part of the collective bargaining process, Scott Martin rightly argues that certain rights, like a disability status created by the legislature when it created the medical marijuana law, cannot be negotiated away to benefit a larger group of employees and union members. 

A ruling in his favor would not just apply to Martin, but could also apply to medical marijuana patients across the state, and potentially the nation, who are subjected to CBAs. You can’t bargain away gender, sexual identity, race, national origin; why should you be able to bargain away a patient’s qualifying medical condition, which is deemed by the law to be a disability protected against discrimination and adverse employment action, just because the employee uses medical cannabis?

The Supreme Court, Erie County, is due to decide the issue after an oral argument on June 7, 2022.

David C. Holland is the Principal at David Clifford Holland P.C. He is a seasoned litigator and highly sought-after consultant for entering and existing operators within the legal cannabis space and a fierce advocate for individuals who have faced draconian persecution for the use or possession of cannabis. David currently serves as the Executive and Legal Director of Empire State NORML, Co-Founder and President of the NYC Cannabis Industry Association (NYCCIA.org), Co-Founder and Vice President of the Hudson Valley Cannabis Industry Association (HVCIA.org) and Legal Advisor for the Last Prisoner Project.  Visit www.hollandlitigation.com Connect David C. Holland