An attorney for the City of Buffalo argued Thursday in State Supreme Court that the Compassionate Care Act does not apply to all New Yorkers and creates a liability for the city if it were to allow firefighters and workers in similar public safety roles to use cannabis, even if medically prescribed.
As a result, the City of Buffalo sought summary judgment and dismissal of a former firefighter’s lawsuit that demands he be reinstated to the same job the city terminated him from last year because he tested positive for marijuana metabolites during a random drug test, in violation of its collective bargaining agreement.
The issue here, though, is that Scott Martin, the former firefighter, is a registered medical marijuana patient for post-traumatic stress disorder and back pain, and was at the time of his termination. Martin has said that medical marijuana helped him stop using the more-dangerous opiate painkillers he was prescribed.
Since his firing, Martin filed a grievance through his union, a civil lawsuit for unlawful termination, and an Article 78 in an effort to get reinstated to the same position he lost.
News 4 Investigates in November 2021 reported on Martin’s termination and the legal issues that decision created.
Martin’s attorney, David Holland, argued that his client is protected under the state’s Compassionate Care Act, which considers medical marijuana patients to be disabled and shields them from discriminatory actions by employers.
Holland said he believes this case is the first of its kind and could dictate how municipal government leaders and private employers negotiate with unions on future contracts to account for the medical use of marijuana, and even recreational use made legal last year.
Michael B. Risman, the attorney for the city, argued that the state’s medical marijuana laws do not apply to all New Yorkers and jeopardize federal funding for the fire department because such funds require drug-free workplaces.
As a result, to allow marijuana use by certain municipal workers in public safety roles or for those who operate heavy machinery would create a liability for the city.
“If [the state legislature] just wanted to cover everyone, they would say that,” Risman said. “The statute would say ‘all employees’. They made it narrow for a purpose.”
State Supreme Court Judge Catherine Nugent Panepinto challenged Risman’s argument that the Compassionate Care Act protections do not pertain to all New Yorkers.
“Are you really making the argument that big groups of people, depending on who they work for, aren’t covered?” Panepinto said. “That seems hard to believe.”
In addition, Risman said Martin gets a civilian pension from the Veterans Benefits Administration, which he claimed requires recipients to be 65 or older or been deemed totally disabled.
“We feel that it appears to us that he may be medically unfit” for the job, Risman said.
Judge Panepinto again challenged Risman, asking whether the city has any record of Martin using marijuana while on the job?
Risman said the city does not have any record of Martin using while on the job or coming to work impaired, but the fire department does not have a way to test employees before they get to work.
“You’re just speculating now,” Panepinto said to Risman.
Risman said the union and city have a collective bargaining agreement that they both agreed to after the passage of the Compassionate Care Act, and that there is no evidence that the state legislature’s intent was to override the power of unions to negotiate policy for its members.
One union member cannot wipe out clauses in the collective bargaining agreement, he said, and these disagreements must be negotiated by the union.
Holland accused the city of “throwing whatever it can against the wall” in desperation instead of dealing with the legal question at stake: who has superior rights, the union or Martin?
Contrary to the city’s position, the state’s medical marijuana laws apply to all New Yorkers, Holland said, not just some.
“I have never seen a law that was designed to protect the professional class as opposed to the working class,” Holland said.
Holland said it would be “ridiculous” to assume Martin used while on the job or came to work impaired because of a positive test because marijuana metabolites can remain in the human body for roughly 30 days. Therefore, there is no evidence that Martin ever violated federal drug-free workplace rules, Holland said.
Just by allowing Martin to be a medical marijuana patient is not a violation of those federal rules, he said.
“It applies, by definition, to the workplace,” Holland said. “You cannot have illicit drugs or alcohol in the workplace and you can’t show up to work impaired, neither of which Mr. Martin is accused of doing.”
As for the federal pension, Holland said that the city’s description of the requirements were incorrect.
Martin qualified for the pension 12 years ago, Holland said, as a result of his wartime military service and the medical conditions he sustained from that service. However, he did not take the pension until he was terminated from his job in February 2021 at the 1st Platoon Truck 14 department at Bailey Avenue and Doat Street in East Buffalo.
Holland said the city knew about the state law and its implications, but instead intentionally decided years later to waive protections for medical marijuana patients as a “quid pro quo” with the union for pages of concessions in the union contract.
Holland said city leaders now are being “mean-spirited” by refusing to negotiate with the union on these issues because of the Martin case.
Judge Panepinto denied the city’s motion for summary judgment to dismiss the case and said in the near future she’d be rendering a decision on how the case should proceed.