A New York state court denied summary judgment to an employer that terminated an employee for testing positive for marijuana, when the employee obtained a medical marijuana certification prior to the termination decision. Gordon v. Consolidated Edison, Inc., Index No. 152944/2019 (Sup. Ct. NY County Apr. 21, 2020).

Kathleen Gordon was subjected to a random drug test by her employer on December 21, 2016. She tested positive for marijuana and her employment was terminated on January 11, 2017. However, after she took the drug test but before she was terminated, she became a certified medical marijuana patient to treat her inflammatory bowel disease. Gordon asserted disability discrimination claims against her employer, specifically: violations of the New York Human Rights Law, New York City Human Rights Law, and the New York medical marijuana law. The New York medical marijuana law provides that medical marijuana users are disabled for purposes of the New York Human Rights Law, which prohibits discrimination against disabled employees.

The employer moved for summary judgment. Among other things, the employer argued that Gordon took the drug test before she became a medical marijuana patient. Moreover, Gordon admitted that she smoked marijuana on December 21, 2016, before obtaining the medical marijuana card several days later. The employer therefore determined that Gordon’s marijuana use (at the time of the drug test) was illegal marijuana use that violated the employer’s policies against illegal drug use. Additionally, the employer argued that it had a past practice of terminating employees for positive drug test results when they had been employed for six months or less (as Gordon was), although there was no express language in their drug testing policy to that effect. The employer also provided evidence that it did not take adverse employment actions against other employees who used medical marijuana.

Gordon argued that the employer knew about her irritable bowel syndrome as well as her plans to obtain a medical marijuana card and that it had an obligation to accommodate her, rather than terminating her employment.

The Court denied summary judgment to the employer on the termination claim because there were issues of fact as to the reasons why Gordon was terminated. Specifically, the Court stated that it was clear that the employer learned about Gordon’s disability (i.e., her medical marijuana certification) prior to the decision to terminate – even though she became certified after the drug test. Moreover, the employer’s policy did not expressly state that all employees who had been employed for six months or less would be terminated for a policy violation.

Additionally, the Court denied summary judgment on the reasonable accommodation claim because the employer did not show that it had engaged in any “interactive dialogue” with Gordon.

The employer further argued that accommodating Gordon would create an “undue hardship” because it would be required to violate the federal Drug-Free Workplace Act, which requires employers to prohibit illegal drug use by their employees. The court disagreed, holding that there were issues of fact, given that the employer did not terminate employees who violated the drug policy if they had been employed for more than six months.

While this case is not binding on all other courts in New York, employers should consider carefully all adverse employment decisions involving medical marijuana users, and should ensure that managers are trained to engage in the “interactive process” with disabled employees, including medical marijuana users. Additionally, employers should make sure that their written drug testing policies are clear, particularly as to disciplinary issues.