Two recent decisions from Rhode Island and Massachusetts suggest that employers cannot terminate or refuse to hire medical marijuana cardholders for failing a company drug test.  Although these decisions are not binding in Pennsylvania, they are still significant to Pennsylvania employers because the medical marijuana statutes in Rhode Island, Massachusetts, and Pennsylvania all prohibit discrimination by employers against medical marijuana cardholders.  The Rhode Island and Massachusetts decisions thus clarify a question that has perplexed many employers since the passage of Pennsylvania’s Medical Marijuana Act (the “MMA”) nearly two years ago:  if an employee with a medical marijuana card fails a company drug test, can the employer discipline the employee under its drug policies?  Or would that constitute unlawful discrimination or retaliation against a medical marijuana cardholder?

The Rhode Island and Massachusetts cases address this important issue.  In the Rhode Island case — called Callaghan v. Darlington Fabrics Corp. — a fabrics company refused to hire a job applicant after she told them that she held a medical marijuana card and could not pass a drug test.  The court ruled that the employer violated Rhode Island’s medical marijuana law when it refused to hire her.  Similarly, in the Massachusetts case — called Barbuto v. Advantage Sales and Marketing, LLC — an employer terminated a medical marijuana cardholder for failing a drug test.  The court held that the employee could sue the employer for handicap discrimination.

Conclusion

In light of Callaghan and Barbuto, employers should reevaluate zero-tolerance drug testing policies and be cautious before terminating or refusing to hire a medical marijuana cardholder simply for failing a company drug test.  Given that Rhode Island, Massachusetts, and Pennsylvania have similar anti-discrimination provisions in their medical marijuana statutes, a Pennsylvania judge may follow the logic of Callaghan and Barbuto and rule that the MMA prohibits employers from firing or refusing to hire medical marijuana cardholders for failing a drug test.  We will continue to watch this important issue.