MEDICAL MARIJUANA AND DISABILITY DISCRIMINATION

Is NYS law more encompassing than NYC law? 

Scholl v. COMPASS GROUP USA, INC., Dist. Court, SD New York 2022:

"Defendants seek summary judgment on Plaintiff's claim under the New York City Human Rights Law. They contend that while New York State law recognizes a person's status as a certified medical marijuana patient as a basis for a claim of disability discrimination, the New York City Human Rights Law does not. Def. Mem. at 6-9. Defendants argue that while the State expanded the definition of disability to include anyone who has a medical marijuana certification, the City chose not to do the same, and "there is no provision in the City Code that recognizes a certified medical marijuana user as `per se' disabled under the local law." Def. Mem. at 7.

Defendants are correct. This Court is "bound" to "apply the law as interpreted by New York's intermediate appellate court[,]" unless there is strong reason to believe the New York Court of Appeals, which has not ruled on the issue, would reach a different conclusion. Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999). Last year, in a similar case on which Plaintiff represents that he patterned his complaint, the First Department held: "The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not." Gordon v. Consol. Edison Inc., 190 A.D.3d 639, 640 (1st Dep't 2021). There is no reason to think the New York Court of Appeals would disagree, since the text of the City's definition of disability cannot reasonably be construed to include being a certified medical marijuana patient. "The term `disability' means any physical, medical, mental or psychological impairment, or a history of such impairment." N.Y.C. Admin. Code § 8-102(16)(a). As the Appellate Division explained, "certification as a medical marijuana patient is . . . a legal classification. It is not a `physical, medical, mental, or psychological impairment.'" Gordon, 190 A.D.3d at 640 (quoting N.Y.C. Admin. Code § 8-102).

It is beyond dispute that the New York City Human Rights Law does not recognize marijuana use as a protected disability. As noted, the text of the City Code does not define disability to include being a certified medical marijuana patient. Indeed, the City's definition of disability expressly provides: "In the case of alcoholism, drug addiction, or other substance abuse, the term `disability' . . . does not include an individual who is currently engaging in the illegal use of drugs when the [employer] acts on the basis of such use." N.Y.C. Admin. Code § 8-102(16)(a) (emphasis added). Marijuana remains an illegal controlled substance under federal law. See 21 CFR § 1308.12. Thus, the City law does not provide a remedy when an employer declines to hire an individual who is engaging in marijuana use.

In the face of controlling authority that being a certified medical marijuana patient is not, itself, a disability under the NYCHRL, Scholl contends that the City law still required Defendants to hire Scholl and allow him to use marijuana as an accommodation "to treat his underlying medical condition," chronic back pain. Pl. Opp. at 1-2, 4-7. Defendants respond that Scholl's complaint clearly alleges that "his status as a certified medical marijuana patient," not back pain, "is the basis for his being `disabled' in this action." Def. 56.1 ¶ 15; see Pl. 56.1 ¶ 15 ("Admit."); Def. Mem. at 6, 11 ("Plaintiff repeats that [being a certified medical marijuana patient] is the basis of his disability at least ten times in his pleading"). Defendants further assert that there is no admissible evidence in the record that Scholl informed Defendants that he suffered from back pain, let alone was disabled on that basis. Def. Mem. at 10-11 (citing Vitti v. Macy's Inc., 758 F. App'x 153, 157 (2d Cir. 2018) (employer who acts without knowledge of a disability cannot be said to have discriminated on the basis of that disability)).

The Court has carefully reviewed the complaint, all of the submissions in connection with the motion for summary judgment, and the parties' representations on the record at oral argument. Scholl clearly made a strategic decision to prosecute this case, from its inception, on the theory that being a certified medical marijuana user is, itself, a protected disability. The complaint repeatedly defines Scholl's disability as "being a certified medical marijuana patient." Cmpl. ¶ 34; see id. ¶¶ 1, 29 ("Defendants suddenly rescinded Plaintiff's job offer and denied him employment solely due to his disability (certified medical marijuana patient)"), 30 ("Defendants penalized Plaintiff . . . because of his certified use of medical marijuana"), 33, 35, 36 ("Defendants discriminated against, failed to accommodate, and refused to hire, Plaintiff solely due to his disability (certified medical marijuana patient)"), 37 ("But for the fact that Plaintiff was disabled (certified medical marijuana patient), Defendants would not have terminated his employment"), 44, 47 ("Defendants engaged in an unlawful discriminatory practice in violation of New York City Administrative Code § 8-107(1)(a) by discriminating against Plaintiff because of his disability, denying him employment, and refusing to provide Plaintiff with a reasonable accommodation for his disability (certified medical marijuana patient)"), 51.

The complaint makes two passing mentions of back pain. First, immediately after alleging that Scholl was "denied employment due to his disability (certified medical marijuana patient)," the complaint adds that Scholl "was denied a reasonable accommodation for his disability (denied employment because he was utilizing medical marijuana to treat his chronic back pain)." Cmpl. ¶ 1 (emphases omitted). The complaint later mentions that Scholl became a certified medical marijuana patient because of a "back injury he suffered when he was younger." Cmpl. ¶ 16. But Scholl makes clear that, in the claim at issue on summary judgment, that the disability Defendants allegedly failed to accommodate is Scholl being a "certified medical marijuana patient." Cmpl. ¶ 47. The complaint specifically alleges that Defendants engaged in unlawful discrimination under the New York City law by "refusing to provide Plaintiff with a reasonable accommodation for his disability (certified medical marijuana patient)"). Cmpl. ¶ 47 (emphasis added).

The complaint never alleges that Defendants denied Scholl employment because of his back pain or that Defendants even knew Scholl had back pain. On the contrary, the complaint repeatedly alleges that Defendants refused to employ Scholl "solely" because he was a "certified medical marijuana patient." Cmpl. ¶ 29; accord, e.g., 30 ("Defendants penalized Plaintiff . . . because of his certified use of medical marijuana."). Similarly, Scholl specifically alleges that he "informed" Defendants that he "was a certified medical marijuana patient," but he never alleges that he informed Defendants that he suffered from back pain. Cmpl. ¶ 22.

At oral argument, Plaintiff's counsel conceded that he patterned the complaint in this case after the complaint in Gordon, in which the plaintiff unsuccessfully argued that being a certified medical marijuana patient is a disability under the NYCHRL.^[2] Tr. at 25:20-21. That is clearly the theory of the complaint in this case. Furthermore, as became clear at oral argument, Plaintiff's counsel relied on the theory that Scholl's disability was only his certification as a medical marijuana patient throughout the discovery period in this case. Specifically, when Defendants first requested medical records, seeking "all documents concerning any disability," Plaintiff's counsel produced only Scholl's medical marijuana certification and otherwise objected that the request sought "irrelevant information." Tr. at 12:23-24, 13:4-6. In other words, Plaintiff's counsel, from the outset, took the position that the only relevant document concerning any disability in this case was Scholl's medical marijuana certificate. Later, when Defendants asked Plaintiff to complete a HIPAA authorization, so Defendants could access whatever medical records Scholl had submitted to obtain his medical marijuana certificate, Plaintiff's counsel responded: "Such a request seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence." Tr. at14:16-19. Again, Plaintiff's counsel strategically chose to litigate this case on the theory that Scholl's disability was only his medical marijuana certification, and not any underlying condition. See Tr. at 13:4-10, 14:12-19, 46:12-16. Scholl could have sought leave to amend after the ruling in Gordon, and produced discovery about his asserted childhood back injury, but he chose not to change his strategy.

Instead, Scholl insists that this Court should rule that the NYCHRL applies to Scholl merely because "by the very nature of having a medical marijuana certificate, a person must suffer from an underlying medical condition." Pl. Opp. at 7. Such a ruling would vitiate the logic of Gordon that the "City HRL does not" recognize such certification, by itself, "as a protected disability." Gordon, 190 A.D.3d at 640. This Court is bound by Gordon. See Pahuta, 170 F.3d at 134. Scholl failed to allege that he suffered from, and that Defendants knew of, a disability other than his "certified use of medical marijuana." Cmpl. ¶ 30. Thus, there is no genuine issue as to any material fact, and Defendants are entitled to a judgment as a matter of law on Scholl's claim under the New York City Human Rights Law."

WHEN SETTLING A NEW YORK DISCRIMINATION/HARASSMENT CLAIM WITH CONFIDENTIALITY CLAUSE

It is a two-stage process. New York General Obligations Law § 5-336 provides:

"1. (a) Notwithstanding any other law to the contrary, no employer, its officers or employees shall have the authority to include or agree to include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law, any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant's preference.

(b) Any such term or condition must be provided in writing to all parties in plain English, and, if applicable, the primary language of the complainant, and the complainant shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the complainant's preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.

(c) Any such term or condition shall be void to the extent that it prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.

2. Notwithstanding any provision of law to the contrary, any provision in a contract or other agreement between an employer or an agent of an employer and any employee or potential employee of that employer entered into on or after January first, two thousand twenty, that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the equal employment opportunity commission, the state division of human rights, a local commission on human rights, or an attorney retained by the employee or potential employee. "

REASONABLE ACCOMMODATIONS FOR SENIOR TENANTS?

 

Nuredin v. Koufa Realty Corp., NYLJ April 28, 2021, Date filed: 2021-04-15, Court: Civil Court, Queens, Judge: Judge Enedina Pilar Sanchez, Case Number: HP604/20:

"Petitioner filed this HP case seeking an order to correct violations pursuant to the New York City Housing Maintenance Code. The subject premises are located at 31-14 42nd Street, Apartment #4, Astoria, New York 11103. The parties are represented by counsel and have appeared via Microsoft Teams video conferencing pursuant to the Administrative Orders in place during this COVID-19 pandemic. After numerous conferences, including a stipulation addressing conditions and violations in need of repairs, petitioner moves by notice of motion seeking an order directing respondents to provide a “reasonable accommodation to the bathtub and bathroom commode located at the subject premises pursuant to the New York City Administrative Code §8-107(15).”1

In summary, petitioner argues that the claw foot bathtub in the apartment is an old fashioned tub; that petitioner cannot easily use this tub and respondents must replace it.

It is undisputed that petitioner is a rent-controlled tenant and has resided in the apartment for close to 60 years. There is no dispute that petitioner has reached an age where daily activities take more time. Petitioner is 87 years old and states that getting in and out of the bathtub is not as simple as before. “She can only bathe herself when her neighbors, who have showers in their apartments, are kind enough to let petitioner use their showers.” Pet. Affidavit.

The question is whether respondents are required to replace the existing claw foot tub with a walk-in shower to accommodate petitioner’s reduced mobility.

Petitioner states that the landlord was asked to provide this accommodation and she submitted a letter from her physician. Petitioner then filed a complaint with the New York City Commission on Human Rights (“CCHR”). After a pre-complaint investigation process, CCHR recommended a reasonable accommodation in the form of a bathtub that “has a cut-out on the side, or a walk-in shower.” (Respondent’s Cross-Motion Exhibit B.) CCHR, however, has not taken any action to enforce its recommendation. CCHR closed the case on June 6, 2020 as the “Accommodation [was] Provided.” (Resp. Exhibit B.)

The accommodation was not provided. Petitioner seeks an order from this Court directing respondent to replace the claw foot tub pursuant to New York City Administrative Code §8-107(15).

Petitioner’s Argument:

This Court has jurisdiction pursuant to Civil Court Act §110 to enforce the housing maintenance code and therefore to direct the respondent to replace a claw foot tub with a walk-in shower as a reasonable accommodation for petitioner’s impaired mobility. Petitioner relies upon case law where the landlord was directed to provide a wheelchair ramp at the building entrance. See, Espino v. New York City Housing Authority, 60 Misc.3d 667(2018).

Respondents’ Argument:

Respondents cross-move for access to the subject premises to correct the violations or in the alternative to dismiss of the case. Violations exist in the apartment and respondents state that petitioner refuses to grant access for other repairs until the claw foot tub is replaced with a walk-in shower. Respondents argue that there are no violations of the Housing Maintenance Code or the Building Code to support the entry of an order directing the owner to replace the claw foot tub with a walk-in shower.

Legal Discussion:

The power of the Housing Court to issue an order pursuant to Civil Court Act §110 is broad and consistent with the objective found in the very language of the Act. Section 110 provides, the court shall hear matters involving the enforcement of state and local laws for the establishment and maintenance of housing standards, including, but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the administrative code of the city of New York.

Petitioner cites Espino v. New York City Housing Authority, supra, in support of the argument that petitioner is entitled to an order directing respondent to replace the claw foot tub with a walk-in shower in order to fulfil the mandates of New York City Human Rights Law. In Espino v. New York City Housing Authority, the Court specifically relied upon Section 27-357 (d) of the Building Code, which section provides, that at minimum one primary entrance shall be accessible and usable by individuals who use wheelchairs.

Petitioner has not cited any provision of the Housing Maintenance Code, the Building Code, the Health Code, or the Multiple Dwelling Law to support her position. Absent such a provision, this Court does not have any basis to issue such an order creating a reasonable accommodation.2 Issuing such an order would be directing changes to residential premises on an ad-hoc basis. Respondent shows that the accommodation sought by petitioner is possible, but that it is not mandated by the Housing Maintenance Code

The Court takes judicial notice of the DHPD inspection report found on the DHPD website, www.nyc.gov/hpd. The inspection report confirms that conditions in the apartment are in violation of the Housing Maintenance Code (HMC), however, there are no violations regarding the bathtub. The relief sought by petitioner, the replacement of the claw foot tub, does not correlate to violations or requirements of the Housing Maintenance Code or the Building Code.

The broad powers of the Housing Court do not include the power to make a declaratory judgment. Petitioner seeks an order that a condition or a disability faced by an occupant requires a modification or an alteration, and that is not provided for by the existing laws enforced pursuant to Civil Court Act Section 110.3

The Court is familiar with the case law referenced in petitioner’s moving papers. Petitioner’s motion does not support the request to have the Court issue an order directing respondents to replace the claw foot tub with a walk-in shower as a reasonable accommodation. The finding and recommendation from the agency do not constitute an administrative order.

Furthermore, the definition of a disability as discussed in Espino v. New York City Housing Authority, supra, is connected to the mandates of the Building Code requiring that at least one primary building egress be accessible and usable by individuals who use wheelchairs.

The Court’s broad powers to enforce the various codes include the power to make a finding that a violation exist. Such a finding would need to correlate to a provision in the Housing Maintenance Code, the Building Code, the Multiple Dwelling Law, or the Health Code. (See, HMC Bathrooms §27-2066.) Petitioner, however, has not presented any evidence that the claw foot tub constitutes a violation under applicable codes.

In conclusion, petitioner’s motion for a reasonable accommodation directing respondent to replace the claw foot tub with a walk-in shower must be denied.

Respondent’s cross-motion is also denied. The allegations regarding refusal to grant access were denied by petitioner with sufficient details.

The parties are directed to arrange access dates to correct the violations in the subject premises. All work shall follow COVID-19 safety protocols.

Upon default, petitioner may restore this case to the calendar for all appropriate relief.

This constitutes the Decision and Order of this Court/

Dated: April 15, 2021

Footnotes

 

1. The Court is informed that the issue of the bathroom commode is resolved.

2. The Court notes that there may be other options that will have a more practical outcome for both sides and still allow petitioner use of her tub.

3. The Court is mindful that as residents age and live a longer life in our community, the need to change or modify the housing stock may become the norm.

 

MEDICAL MARIJUANA AND THE WORKPLACE

 

Gordon v. Consolidated Edison, Inc., 2021 NY Slip Op 492 - NY: Appellate Div., 1st Dept. January 28, 2021:

"The record shows that plaintiff worked for defendant as a financial analyst. Plaintiff suffered from irritable bowel disease (IBD), one of the conditions covered by the Compassionate Care Act (CCA) (see PHL 3360 to 3369-e), and in December 2016, she consulted a physician about whether medical marijuana would help with her IBD symptoms. The physician told plaintiff that she would be a suitable medical marijuana patient. On December 17, 2016, plaintiff tried marijuana to see if it would alleviate her IBD symptoms, and, plaintiff alleged, the drug worked "instantaneously" to relieve her symptoms. The next day, plaintiff contacted a physician registered with the New York State Department of Health's Medical Marijuana Program (MMP) to certify patients for medical marijuana treatment, and made an appointment to see the doctor on December 27, 2016.

In the meantime, on December 21, 2016, plaintiff was randomly selected for a drug test in accordance with defendant's standing policy, and she provided a urine sample and tested positive for marijuana. On December 27, 2016, plaintiff saw the MMP-registered physician, who certified that plaintiff was likely to benefit from treatment with medical marijuana. On December 29, 2016, the MMP website stated that she was approved as a medical marijuana patient.

On that same day, defendant's Human Resources (HR) department informed plaintiff that she had tested positive for marijuana use. Plaintiff responded that she was a medical marijuana patient, and that she had used marijuana to treat her IBD symptoms. The HR officer scheduled an appointment for plaintiff to meet defendant's in-house medical review officer (MRO), a physician, on January 5, 2017.

On January 5, plaintiff saw the MRO, who ascertained that when plaintiff used marijuana on December 17 she was not yet a certified medical marijuana patient. The MRO concluded that plaintiff's use violated defendant's drug use policy, and referred plaintiff back to the HR department for action. The HR department decided that, because plaintiff was still a probationary employee, she was not eligible for accommodation and should be terminated. The HR department arranged to meet with plaintiff on January 11, 2017, to inform her of the decision.

On January 9, 2017, the MMP issued plaintiff's Registry ID card. On January 10 and 11, 2017, plaintiff reiterated to the HR department and her supervisor that she was a certified medical marijuana patient. At the meeting on January 11, defendant terminated plaintiff's employment.

The foregoing timeline establishes that there are issues of fact, for purposes of plaintiff's claim for failure to accommodate under the State Human Rights Law (HRL), as to whether defendant adequately engaged in a cooperative dialogue with plaintiff (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 [2014]; Phillips v City of New York, 66 AD3d 170, 176 [1st Dept 2009]) to determine whether it could reasonably accommodate her status as a medical marijuana patient (see PHL 3369[2]). Notably, questions of fact exist as to whether defendant improperly cut the dialogue process short when it discovered that plaintiff was a probationary employee, and refused to consider accommodating her — as it regularly did for permanent employees — by, for example, giving her discipline short of termination, or simply overlooking the one-time technical violation in light of her contemporaneously acquired status as a medical marijuana patient (see Matter of McEniry v Landi, 84 NY2d 554, 560 [1994]).

This case is distinguishable from cases like Hazen v Hill Betts & Nash LLP (92 AD3d 162 [1st Dept 2012], lv denied 19 NY3d 812 [2012]), where we held that even when an employee's "misconduct was caused by his disability, [the employer] was not required to excuse that misconduct as an accommodation" (id. at 170). Here, plaintiff did not here seek certification for medical marijuana use after testing positive for its use. Instead, her pre-certification marijuana use was the beginning of a process which ended with her certification for medicinal use. Plaintiff began the certification process before she tested positive at work. Nor is there any allegation that plaintiff's use of marijuana, either before or after certification, has ever affected the quality of her work or her ability to do that work, or that she has ever used marijuana, medicinal or otherwise, at the workplace.

The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not. Although the City HRL must be construed liberally to ensure maximum protection (see Administrative Code of City of NY § 8-130[a]), certification as a medical marijuana patient is (other than as specified for purposes of claims under the State HRL) a legal classification. It is not a "physical, medical, mental, or psychological impairment," which is how disabilities are defined under the City HRL (Administrative Code § 8-102).

Nevertheless, plaintiff's IBD, is a physical impairment and thus a disability under the City HRL. Accordingly, issues of fact exist as to whether defendant should have permitted plaintiff to treat her IBD through the medical use of marijuana, as a reasonable accommodation. In that regard, a further issue of fact exists as to whether the accommodation would reasonably extend to excusing the single pre-certification use of marijuana, and whether defendant fulfilled its duty to engage in an interactive dialogue with plaintiff aimed at reaching a reasonable accommodation for her disabling condition.

With respect to plaintiff's claim of disability discrimination, plaintiff has raised an issue of fact as to whether defendant's proffered reason for terminating plaintiff, i.e., that she violated the company's drug policy by using marijuana prior to her certification as a medical marijuana patient, was pretextual (see Uwoghiren v City of New York, 148 AD3d 457, 457-458 [1st Dept 2017]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 36 [1st Dept 2011], lv denied 18 NY3d 811 [2012]).

However, plaintiff's third cause of action for violation of PHL 3369 must be dismissed, because the provisions of PHL 3369 demonstrate that creation of a private right of action would not be consistent with the CCA's statutory scheme (see Sheehy v Big Flats Community Day, Inc., 73 NY2d 629, 633 [1989]; Rhodes v Herz, 84 AD3d 1, 10-11 [1st Dept 2011], lv dismissed 18 NY3d 838 [2011]). Section 3369 expressly references several well-developed existing statutes prohibiting discrimination, including the State HRL, Civil Rights Law § 40-c, and the hate law provisions of the Penal Law.

These express references evidence the legislature's intention to invoke the protections afforded by those statutes as the enforcement mechanisms for violations of the CCA. In particular, the CCA's unique provision that status as a medical marijuana patient shall constitute a "disability" for purposes of the State HRL, signals the legislature's intent to incorporate that highly developed body of law as a mechanism for certified patients' protection of their right to avail themselves of the benefits of medical marijuana.

Accordingly, we modify solely to grant defendant's motion to the extent of dismissing plaintiff's third cause of action for violation of PHL 3369."