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Can an Employer Terminate an Employee for Medical Marijuana Use Permitted Under State Law?

Lerch Early's Legal Update 2018, Vol. 1

As more and more states have legalized marijuana for medical and recreational purposes, many employers have wondered if they are now prohibited from both refusing to hire an applicant and terminating an employee for marijuana use. Adding to the confusion is the fact that marijuana remains illegal under federal law.

Though most state laws permit employers to terminate employees for on-the-job use or impairment from marijuana, whether an employer can take an adverse action against an applicant or existing employee for a marijuana positive drug test is more – shall we say hazy.

Background
Some states have enacted provisions in their medical marijuana statutes that explicitly prohibit employers from discriminating against individuals based on past or present medical marijuana use or medical marijuana card holder status. Most of these laws include an exemption should the employer lose financial or licensing benefits under federal law for declining to take adverse action against the employee or applicant on this basis.

Other states, including Maryland and Massachusetts have vague language in their medical marijuana statutes that prohibit an individual being “denied any right or privilege” for the medical use of marijuana. Such language leaves the issue of discrimination for medical marijuana use up to judicial interpretation.

The Massachusetts Case
In the summer of 2017, a Massachusetts’ court interpreted this phrase in its medical marijuana statute to make clear that a termination for medical marijuana use could violate Massachusetts’s law prohibiting disability discrimination.

In Barbuto v. Advantage Sales and Mktg., LLC, the employer terminated the plaintiff, a medical marijuana user, because she tested positive for marijuana use. The plaintiff brought suit alleging that her termination was a form of handicap discrimination in violation of Massachusetts law.

In defense, the employer argued: (1) permitting an employee to use medical marijuana was facially unreasonable because it is prohibited by federal law; and (2) even if the plaintiff was a qualified handicapped person protected by the Massachusetts law, she was terminated because she failed a drug test that all of the employees were required to pass, not because she was handicapped. The trial court agreed with the Defendant and dismissed the case. The plaintiff appealed.

On appeal, the Supreme Judicial Court of Massachusetts concluded that the employer had a duty to engage in an interactive process to determine whether it could accommodate the plaintiff’s disability, specifically to determine if there were equally effective medical alternatives to the marijuana use that would have allowed the employee to perform her job duties. If not, the Court concluded that a possible accommodation for this employee was to exempt her medicinal marijuana use from the employer’s drug policy, unless doing so posed an undue hardship.

The Court noted that an undue hardship would occur if permitting medical marijuana use would violate the employer’s contractual or statutory obligations, such as for transportation employers subject to DOT regulations that prohibit any safety-sensitive employee from using marijuana, and federal government contractors who are obligated to comply with the Drug Free Workplace Act, which requires them to “make ‘a good faith effort... to maintain a drug-free workplace,’ and prohibits any employee from using a controlled substance in the workplace.”

The Barbuto court found support for its position in the marijuana statute which provided that a person using marijuana in accordance with this statute, “shall not be penalized in any manner, or denied any right or privilege, for such actions.” Notably, similar language exists in the Maryland marijuana statute, though no Maryland court to date has interpreted this language so it is unclear whether Maryland employers must accommodate off duty medical marijuana use.

Conclusion
Although it did not conclude that an employer must permit employee medical marijuana use, the Barbuto case is the first time that a court has suggested that an employer may not be able to enforce a policy that prohibits marijuana use when a disabled employee is using marijuana for medicinal purposes. Instead, an employer in Massachusetts must engage in the interactive process to determine whether it can accommodate the medical marijuana use or whether doing so poses an undue hardship.

So far, only this Massachusetts court has reached this holding. Time will tell whether this case is an outlier or whether employers in all jurisdictions will have to entertain the possibility of employing employees using marijuana for medical use.

Julie Reddig and Nida Kanwal are employment attorneys who represent management in workplace employment matters. For more information on hiring and firing related to the legalization of marijuana, contact Julie at jareddig@lerchearly.com or Nida at nkanwal@lerchearly.com.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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