2021 Index No.805903/2021 (Sup. Ct.)

Overview

A city of Buffalo firefighter filed an article 78 proceeding seeking reinstatement to his prior job in the Buffalo Fire Department after being terminated for a positive drug test. The plaintiff is a protected medical marijuana patient under New York’s Compassionate Care Act. The collective bargaining agreement, last amended after the Compassionate Care Act was passed, which is utilized by the Buffalo Fire Department fails to make a protective provision for medical marijuana recipients.

Plaintiff who is a qualified medical marijuana patient deemed by statute to suffer a “disability” cannot be discriminated against or terminated by employer just for being a medical patient according to New York Public Health Law 3369(1) and (2).

Facts

Plaintiff brought an article 78 proceeding. In an article 78 proceeding, the petitioner asks a state court to review a decision or action of a New York State official or administrative agency, such as a prison official or the Board of Parole, which you believe was unlawful.

In this case the petitioner, Firefighter Scott Martin, a United States Air Force veteran, was a 12-year member of the Buffalo Fire Department (“BFD”) and a member of the Buffalo Professional Fire Fighters Association. Mr. Martin is a qualified medical marijuana patient under New York’s Compassionate Care Act.[1] Furthermore, the Buffalo Fire Department is subject to a collective bargaining agreement that has been the subject of Arbitration proceeding in 2011 resulting in what is commonly referred to as the “Rinaldo Award”.[2] This Rinaldo Award resolved various issues relating to the CBA and established a drug testing and drug treatment protocol for firefighters who tested positive for illicit substances. However, the CBA did not recognize or establish any specific provision for the rights of medical marijuana patients like Plaintiff under New York’s Compassionate Care Act. Plaintiff was unlawfully suspended and later discharged from the BFD for testing positive for his otherwise lawful use of medical cannabis which permitted under the Compassionate Care Act.

The plaintiff was randomly drug tested and failed because of his medical marijuana usage. As a result of his failed drug test, Mr. Martin was placed on suspension and was told to seek medical counseling, which he did. After counseling, Plaintiff was given another drug test, which he again failed because of his continued medical marijuana usage.

Pursuant to the CBA, after the second failed drug test, Plaintiff was discharged from his duties as a fireman.

The issue is that the CBA does not incorporate the Compassionate Care Act. If the CBA did, Fireman Martin would still be working in his firehouse. The BFD argues that they are not required to abide by the CCA because they are not a “business” but rather a “municipality”. They also argue that they are required to “make a good faith effort to provide a drug-free workplace”.[3]

The case is currently being litigated. For more information about the case, you can find it here and here.

Main Takeaways

1. Under the New York State Human Rights Law (NYSHRL), employers may not discriminate against an employee or job applicant based on lawful use of medical marijuana.
2. The Compassionate Care Act is a robust piece of legislation that protects medical marijuana recipients. The law has just been changed to allow doctors in New York to prescribe medical marijuana for any ailment they see fit.
3. There are 9 states which explicit non-discrimination provisions incorporated into their medical marijuana legislation. These states are (1) Arizona, (2) Illinois, (3) Delaware, (4) Maine, (5) Nevada, (6) Minnesota, (7) Rhode Island (8) Connecticut and (9) New York.

[1] Public Health Law, TItle 5A, § 3360

[2] Matter of City of Buffalo v. Rinaldo, 41 N.Y.2d 764, 766

[3] 2 CFR § 182.500