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Staying Out of the Weeds: Employment Law Meets Medical Marijuana

15 Aug, 2017 By: Janice P. Gregerson, Douglas B. Mishkin

Although marijuana use remains illegal under federal law, 29 states – beginning with California in 1996 – have legalized medical marijuana. Of those states, only 10 explicitly prohibit employers from terminating or otherwise penalizing employees for using medical marijuana. That means that in most states that allowed use of medical marijuana, employers had no duty to accommodate an employee’s use of medical marijuana. They could, in effect, rely on their drug-free workplace policy and just say no.

In those states where medical marijuana has been legalized without explicit employment protections, state courts have consistently found no affirmative duty to accommodate employees who use the drug. Employers in those states have been on reasonably solid legal ground when refusing to permit exceptions to their drug-free workplace policies to accommodate the use of medical marijuana.

But that ground may be shifting – at least in some jurisdictions. Recently, the Massachusetts Supreme Judicial Court (SJC) ruled in Barbuto v. Advantage Sales and Marketing LLC that employers cannot escape their affirmative duty to engage in the interactive process with an employee who is prescribed medical marijuana simply because the employer has a drug-free workplace policy and federal law prohibits the use of medical marijuana. Cristina Barbuto applied for, and was offered, a position with Advantage Sales and Marketing. ASM advised her, post-offer, that it required a drug test. Barbuto consented to the test, but explained that she would test positive for marijuana because, per Massachusetts law, she uses medical marijuana under a prescription to manage her Crohn’s disease. She said she did not use it daily or right before or at work.

Barbuto took the drug test, tested positive as she forewarned, and completed her first day of work – whereupon ASM fired her for violating its drug-free workplace policy. She then sued ASM for handicap discrimination in violation of Massachusetts’ anti-discrimination law, citing the company’s failure to accommodate her use of medical marijuana.

The Massachusetts SJC reversed the Massachusetts Superior Court’s dismissal of Barbuto’s complaint for failure to state a claim for disability discrimination under Massachusetts law. ASM argued that Barbuto’s claim should fail on its face, because it could not be reasonable to accommodate the use of a substance prohibited by federal law. The SJC rejected that argument, noting that Massachusetts voters and the state legislature enacted the medical marijuana law protecting that use.

Accordingly, all employers must treat an employee’s use of medically prescribed marijuana as it would the employee’s use of any other lawfully prescribed medication. Massachusetts employers can no longer simply rely on their drug-free workplace policies to terminate employees who use medical marijuana. Instead, Massachusetts employers must at least engage in the interactive process to explore alternative accommodations that would allow the employee to do his or her job.

While the Barbuto decision applies only to Massachusetts, it may portend things to come elsewhere. Employers who operate in jurisdictions that permit the use of medical marijuana should consult with experienced counsel to determine whether any state statutes require accommodation of employees who use the drug. In some states, that duty is explicit. Other states do not explicitly protect employees who use medical marijuana, but have protections that resemble the Massachusetts “denial of a right or privilege” provision.

In those states, whether an affirmative duty to accommodate exists – and the extent of that duty – will depend on how that state’s courts interpret the statute. Absent such a decision from the state’s courts, guidance from the state anti-discrimination agency may be useful.

As more states legalize the use of medical marijuana, more may require employers to engage in the interactive process with their employees to accommodate the use of medical marijuana. Companies, particularly those with employees in multiple states, should remain aware of their legal obligations in this evolving policy area and amend their employment policies to mitigate legal risk.

Douglas B. Mishkin is a partner in Venable’s Labor and Employment practice group. Janice P. Gregerson is an associate with the group. They may be contacted at (202) 344-4000.

About the Author: Janice P. Gregerson

Janice P. Gregerson

About the Author: Douglas B. Mishkin

Douglas B. Mishkin

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