How a New York Collective Bargaining Agreement Tried to Halt a Medical Cannabis Patient Certification
What’s more, the Empire State at that point had already been legal for medical marijuana for six years, its program in effect for two.
But those factors carried no weight: Martin, now 38, was suspended from his EMT duties on December 15, 2020, and ordered into mandatory EAP counseling, then fired on February 23, 2021. The termination occurred under the drug-testing requirements in Martin’s union local’s collective bargaining agreement (CBA) with the City of Buffalo.
Martin takes medical cannabis for chronic back pain and PTSD stemming from his harrowing experiences in war zones. He claims a spotless record as a Buffalo firefighter spanning almost 12 years and a legal right to medical cannabis certified in 2018.
His case is pending before the New York State Supreme Court, with a possible March 10 hearing. It is likely a first for New York State, perhaps even nationwide: significant for pitting an individual’s state medical cannabis status against the federal government’s continuing policy of cannabis illegality.
In court documents, the City of Buffalo responded to Martin’s case, stating that it must abide by the firefighter Local 282’s collective bargaining agreement (CBA), whose drug-testing policy was agreed to in 2005 yet, despite several amendments to that document, never updated to reflect the state’s medical cannabis certification program. “It seems that Petitioner’s [Martin’s] real problem is not with the city, it is with his union,” Buffalo Assistant Corporation Counsel Christine Chiriboga wrote in an affidavit responding to Martin’s complaint
A second city argument explains why attention to the federal government’s cannabis stance is involved: The Buffalo Fire Department receives federal funding from the Federal Emergency Management Administration.
Martin’s attorney, David Holland, disagrees with these and other city arguments and instead emphasizes the discrimination he and Martin see. “What’s important under the law, Holland said in an interview, “[is that medical marijuana patients are] deemed disabled if they have a qualifying condition which requires the employer to make reasonable accommodation for him.”
Continued Holland, principal of the New York City firm David Clifford Holland P.C.: “We now have statements from the City of Buffalo and the fire department saying they were aware of the medical marijuana statute and protections afforded and decided to not acknowledge it, so they could get better concessions in the collective bargaining negotiations.
“They actually rationalized away discrimination,” continued Holland, “[by saying] ‘We’re just not going to recognize people that are disabled under the law that are medical marijuana patients. We’re not going to recognize that as a medicine.”
While CBAs, in Holland’s words, can negotiate away certain employee rights like freedom of speech, “I’m not aware of any disability, race, gender, sexual preference that can be bargained away willy nilly…”
Holland’s reference included what he termed Martin’s disabled status due to his reported pain and PTSD. In fact, in Martin’s affidavit, describing his harrowing combat experiences in Afghanistan and Iraq in the early 2000s, one statement notes that, “At Firebase Salerno, we were subjected to regular rocket and other terrorist-based attacks. To say these attacks were frightening is to grossly understate the physical and emotional toll those frequent incursions caused me and my fellow service members.”
Adds Martin: “As the result of my time in both Iraq and Afghanistan and the unspeakable horrors I witnessed during combat, I now suffer significant bouts of PTSD as well as anxiety and depression.” He listed problems with sleep, emotional stability and introversion.
Martin also describes severe back pain from his years as a firefighter and EMT, stemming from episodes like “being blown out of a window of a building during a fire due to a ‘flash over’ and then being ricocheted off the neighboring building and almost being blown off a roof ladder in a windstorm, which caused shoulder tendon damage.”
His affidavit further notes his attempts to treat his emotional and physical pain with opioids, which he worried would cause addiction, and injections of tramadol into his spine. His 2018 certification for medical marijuana, Martin says, “allowed me to get through these bouts in a less anxious, traumatized manner, so they would pass more quickly and less devastatingly.”
The reason why he never shared his physical issues with his superiors, he also says in his affidavit, was what he describes as a soldier’s unspoken rule never to show signs of frailty, lest such acknowledgements undermine confidence for the upcoming fight. Similarly, expressions of fear or pain could affect fellow firefighters “when the time comes to make life and death decisions inside a building engulfed in flames or with a dying patient,” Martin says.
While city attorney Chiriboga might sympathize on a personal level, her affidavit specifies that the issues Martin outlines do not comply with all three criteria of the public health law’s definition of a “serious health condition,” for qualifying for medical cannabis. She also takes his case to task for his certifying doctor “punting” on important details in the case, and to an unnamed pharmacist who she says did not meet state criteria for a “practitioner” and who never specified the CBD/THC ratio Martin’s medications included.
