High Times: Accommodating Marijuana Use at Work
Marijuana laws are evolving in the US. Marijuana is a Schedule 1 drug under the Controlled Substances Act, and has no accepted medical use under federal law. However, 29 states and Washington, D.C. have passed laws that decriminalized medical or recreational marijuana use. Nonetheless, many employers have longstanding zero tolerance drug use policies. The question remains, how should employers reconcile their internal policies with the laws requiring employers to accommodate employees with certain medical conditions? The answer is hazy.
The Massachusetts’ Supreme Court recently became the highest court in the nation to apply a general disability anti-discrimination protection to medical marijuana use. In Barbuto, an entry-level sales and marketing employee filed suit after she was terminated for failing a mandatory employee drug test. She alleged wrongful termination for various common law and statutory claims, including disability discrimination. Specifically, the claim alleged a failure to “reasonably accommodate” her Crohn’s disease, and her medically certified off-duty use of marijuana to treat that illness.
The court rejected the argument that the requested disability accommodation was per se unreasonable because the use of marijuana violates federal law. The court ruled that off-site medical marijuana use does not per se disqualify an individual from protection under the law and remanded the case to the trial court.
Barbuto continues a recent trend that is expanding the protections of marijuana users in the workplace. Earlier this year, a Rhode Island superior court interpreted Rhode Island’s medical marijuana law to prohibit discrimination against medical marijuana users on the basis of their off duty medical marijuana use. These two decisions reverse the previous case-law in this area, including decisions from Colorado and Washington, where the courts dismissed complaints brought by medical marijuana users who had been terminated for drug use.
Employers in all jurisdictions should monitor these issues since the case-law is changing rapidly. Prior to reacting to an employee’s marijuana use, employers are well advised to consult with counsel.