Marijuana in the workplace is currently a hot topic for retail employers, especially since voters in Massachusetts and other states legalized the recreational use of marijuana in November 2016. The law that passed and became effective in December 2016 explicitly notes that employers retain their authority to implement policies and practices restricting employees’ use of marijuana, and employers are not required to accommodate any conduct permitted by the law. Nevertheless, employers may still face pressure to adjust their hiring practices and employee policies as marijuana use becomes more publically acceptable.

One topic in particular that courts are dealing with now is employees’ use of medical marijuana. The use of medical marijuana has been legal in Massachusetts since January 2013 after Massachusetts voters similarly approved of its use by a ballot initiative in November 2012. A case is currently pending at the Massachusetts Supreme Judicial Court that deals with the issue of whether an employer’s failure to provide reasonable accommodation for an employee’s use of medical marijuana constitutes discrimination.

The plaintiff employee had a prescription for medical marijuana. In 2014, the employee was terminated by her employer after her drug test came back positive for marijuana. The employee brought claims against the employer, which included discrimination on the basis of her disability and invasion of privacy. Specifically, the employee alleged, among other things, that the employer discriminated against her by not providing a reasonable accommodation for her medicinal use of marijuana, and that her employer invaded her privacy by requiring her to take a drug test. The trial court dismissed all counts in the employee’s complaint except her invasion of privacy claim. The court reasoned that there was no support for finding that Massachusetts requires an employer to provide accommodation for an employee’s medicinal use of marijuana.

The employee applied for direct appellate review, which the Supreme Judicial Court granted. In March 2017, the Supreme Judicial Court heard oral arguments and the case is currently under advisement. Time will tell how the state’s highest court will handle the issue of workplace accommodation for medical marijuana use. At the very least, the survival of the invasion of privacy claim at the trial court level suggests that the legal use of marijuana will continue to present unique challenges for employers.