As the number of states legalizing the use of marijuana for medical purposes has steadily grown, employers have been anxiously asking whether they are required to accommodate the use of medical marijuana if the use is related to an employee's disability. Employers have felt comfortable that the use of medical marijuana is not protected under the federal Americans with Disabilities Act. Courts have routinely concluded that that because the ADA does not cover employees who use illegal drugs, and because marijuana remains illegal under federal law, the ADA does not protect medical marijuana users.
That, however, is not the end of the inquiry. Many states and local governments have their own anti-discrimination statutes that protect employees against discrimination based on disability. Until very recently, states that had considered the issue had uniformly found that legalization of marijuana for medical use did not require accommodation under state or local law. This was true even in the state of California, where the state Supreme Court had held as far back as 2008 that use of medical marijuana was not protected.
A unanimous decision from the Massachusetts Supreme Judicial Court on July 17 has the potential to dramatically alter the landscape. The Court's decision in Barbuto v. Advantage Sales and Marketing, LLC examined whether an employer violates that state's anti-discrimination law when it fires an employee who fails a drug test because the employee uses medical marijuana outside of the workplace. The Court concluded that, as with the use of any properly prescribed medication, the use of lawfully prescribed marijuana must be accommodated. Specifically, Chief Justice Gants noted that, "an exception to an employer's drug policy to permit its use is a facially reasonable accommodation."
The Court left open the possibility that accommodating an employee's use of medical marijuana could pose an undue burden to employers, holding that the use of marijuana could impair performance or cause a safety issue, which would impose an undue burden on employers. If this analysis sounds familiar, it should – it is essentially the analysis employers have been using for years with respect to employee use of other controlled substances. The Court also confirmed that the statute does not require employers to permit the use of medical marijuana in the workplace.
What does this mean for employers? For now, it means that employers in Massachusetts must accommodate the off-duty use of medical marijuana just as they would accommodate the use of any other controlled substance prescribed by a physician. Will this decision have an impact in other states? That remains to be seen. However, it is important to note that the Massachusetts law legalizing medical marijuana states that patients may not be denied "any right or privilege on the basis of their medical marijuana use," which the Court reasoned included the right to a reasonable accommodation by an employer. The language of a particular state's medical marijuana statute will likely become more important after this decision, and employers with operations in such states should closely review their state's statute to determine if a similar argument could be made. Employers who believe they may need to accommodate marijuana use should be sure to engage in the interactive process, which the Massachusetts Court indicated could include asking the employee's physician if there was any other medication that the employee could use that was permitted by the employer's drug program.
Time will tell whether the Massachusetts decision will be an outlier or the new standard under disability law. Until then, employers should exercise extreme caution before making decisions relating to employee use of medical marijuana.
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