Last week, the Massachusetts Supreme Judicial Court became the first court in the US to rule in favor of an employee who uses medical marijuana and claimed unfair dismissal after being fired from her job for failing a drug test, the Boston Globe‘s Dan Adams reported:
Supreme Judicial Court Chief Justice Ralph D. Gants said a California sales and marketing firm discriminated against an employee of its Massachusetts operation who uses marijuana to treat Crohn’s disease when it fired her for flunking a drug test. In Massachusetts, Gants wrote, “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.”
Therefore, he said, employers can’t use blanket anti-marijuana policies to dismiss workers whose doctors have prescribed the drug to treat their illnesses. Instead, antidiscrimination laws require companies to attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ, such as exploring alternative medications or allowing use of the drug only outside of work hours.
The court overturned a lower court’s dismissal of a lawsuit brought by Cristina Barbuto against her employer, Advantage Sales and Marketing, which fired her after just one day on the job when she tested positive for marijuana, even though Barbuto said she had told the company during her job interviews that she used it medicinally after work hours to treat her condition and her hiring manager had said it would not be an issue. The lower court will now retry Barbuto’s case under the guidelines established by the high court. (Read the full ruling here.)
The ruling does not mean that employers must accommodate medical marijuana use in all circumstances: Employers that contract with the federal government can still maintain drug-free workplaces as federal law requires, and employees who operate heavy machinery or whose jobs are safety-sensitive can still be barred from using marijuana, even for medical purposes. However, employers in Massachusetts no longer have a free hand to terminate medical marijuana users solely on the basis of a failed drug test, and will have to try to work out a reasonable accommodation instead. Business groups that filed briefs on behalf of Advantage argued that this would impose a serious burden on small businesses and put them at risk of extensive litigation.
While this ruling obviously applies only to Massachusetts, a similar decision was handed down in Rhode Island last month, and courts in other states where medical marijuana is legal may follow suit, Epstein Becker & Green attorney Nathaniel M. Glasser explained at Lexology last week. For many employers, this could mean rethinking blanket drug-free workplace policies:
Wherever employers operate, it is clear that they must take added precautions in administering their drug testing policies. While employers may continue to prohibit the on-duty use of or impairment by marijuana, employers must consider the following when testing for marijuana:
- Employers should review their drug-testing policies to ensure that they (a) set clear expectations of employees; (b) provide justifications for the need for drug-testing; and (c) expressly allow for adverse action (including termination or refusal to hire) as a consequence of a positive drug test.
- Employers may consider or be required to adjust or relax certain hiring policies to accommodate lawful medical marijuana users.
- When an individual tests positive ostensibly because marijuana is used to treat a disability, employers, particularly those in Massachusetts, may be required to engage in the interactive process. First, however, employers should evaluate whether the individual has a qualified disability that warrants an accommodation and whether allowing the individual to use medicinal marijuana would allow rather than hinder the individual’s ability to perform the essential functions of the job.