NYC OATH Decision Finds for Medical Marijuana User
As we have previously reported, there has been an uptick of new employment decisions finding in favor of registered medical marijuana users. Somewhat under the radar, New York City’s Office of Administrative Trials & Hearings (“OATH”) also has issued a report and recommendation to reverse an adverse action taken by a New York City agency against a lawful medical marijuana user.
In Taxi & Limousine Comm’n v. W.R., OATH Index. No. 2503/17 (July 14, 2017), adopted, Comm’r Dec. (July 25, 2017), the Taxi & Limousine Commission (“TLC”) revoked the respondent taxi driver’s TLC Driver License because the driver tested positive for marijuana. OATH reversed, finding that revocation solely because of the driver’s status as a certified medical marijuana patient would violate New York city and state laws.
The rationale was simply stated. Under the New York Compassionate Care Act, certified patients may not be subject to penalty or denied any right or privilege solely for the certified use of medical marijuana. Because the patient certification is analogous to a prescription, the certified use of marijuana could not constitute an illegal drug use that would serve as the basis to revoke a license. Further, certified patients are deemed to have a disability under the New York State Human Rights Law. Because the New York State Human Rights Law prohibits discrimination on the basis of disability, as does the New York City Human Rights Law, the driver had additional protections against revocation of his license.
This case serves as another illustration of the intersection of medical marijuana use and disability, and the potential pitfalls for those companies that maintain zero-tolerance drug policies.
New York City employers should be particularly cautious in the use of drug tests and the enforcement of their drug policies. While this decision involves a licensee rather than an employee, the reasoning employed by the Administrative Law Judge can be equally applied to the employment context. Additionally, OATH hears appeals of decisions from the New York City Commission on Human Rights, so there is little doubt that this rationale would be followed in employment discrimination cases.