A recent unanimous decision by the highest state court in Massachusetts sends a warning signal to employers in all states. Marijuana in the workplace is a complex and unsettled legal issue that will require all employers to navigate a veritable minefield. Even if you are in a state other than Massachusetts, this recent case may provide important guidance for employers facing the legal specter of pot in the workplace.

Background

Currently, 32 states and the District of Columbia have legalized at least some aspect of the use of marijuana. The laws are a hodgepodge ranging from legalization of recreational use, to legalization of only medical use, to legalization of only medical use of certain strains that contain extremely low levels of THC. Of the states that have legalized marijuana, only 11 states have legislated some form of anti-retaliation provisions for employees. Massachusetts was not one of the 11. In many states, employees may be able to use marijuana legally at home, but be unable to get hired, or may face termination under their employer’s drug free workplace policy.

While many states have moved towards legalization, the federal government continues to classify marijuana as a Schedule I narcotic (the same designation as heroin). Under the Obama administration, the U.S. Department of Justice took steps to reduce enforcement efforts against those who used it as permitted by state law. However, the current Attorney General has had a long history of opposition to legalizing marijuana. As a result, the legal divide between state and federal law stands to cause confusion for both individual marijuana users and employers who seek to maintain a drug free workplace. Increasingly, employers will be faced with the quandary of what to do with an otherwise “legal” marijuana user.

The Massachusetts Case

Massachusetts legalized medical marijuana in 2013. Christina Barbuto suffers from Crohn’s disease, and in accordance with her state’s law, legally used medical marijuana to treat her condition. Ms. Barbuto accepted a job offer with Advantage, which required her to take a pre-employment drug test. Before taking the test, she told the company she had Crohn’s disease and used marijuana to treat it. After starting work, Ms. Barbuto was informed she had tested positive for marijuana, and under the company policy was terminated.

Ms. Barbuto brought a claim of disability discrimination under Massachusetts’s anti-discrimination law for Advantage’s failure to accommodate a legal treatment for her disability, Crohn’s disease. Advantage defended by stating that, under federal law, her marijuana use was illegal and therefore it was not reasonable to make an accommodation. Ms. Barbuto’s case was ultimately dismissed by the trial court. However, on appeal, the Massachusetts Supreme Judicial Court reversed. The appellate court ruled that, based on Ms. Barbuto’s allegations, she should at least be allowed the opportunity to demonstrate that her use of marijuana could be potentially accommodated, and that at a minimum, Advantage should have gone through an interactive process with Ms. Barbuto to consider accommodations before terminating her.

Learning Points for Employers

• Even if your state’s marijuana legislation has no anti-retaliation provision, consider the analysis under the federal Americans with Disabilities act, or the equivalent state or local law:
  • Does the employee or applicant meet the legal definition of being disabled?
  • Are they otherwise qualified for their employment?
  • Can the disability be accommodated?
  • Will making the accommodation create an undue hardship?

• Before terminating any employee with a disability, make sure you have gone through this interactive process.
• If you want to maintain a drug free workplace, identify and develop a legally defensible business justification for why it is unreasonable to accommodate off-duty marijuana use. This will require you to study the science of medical marijuana usage. If no such legally defensible business justification exists for your business, then seriously consider modifying your policy. Moral opposition to marijuana use will not be a good defense in a case brought by a disabled individual who obtains relief from legally using marijuana.

It is clear more states will legalize broader use of marijuana. At the same, the future of federal law and the efforts to enforce it is hazy. It is important employers stay focused on all the future developments.