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February 21, 2018 Articles

Medical Marijuana and Employment Considerations

The changing landscape of medical marijuana use permissibility has led many employers to question where their employment policies stand.

By Jayde Brown – February 21, 2018

In 1996, California became the first state to allow for the medical use of marijuana. A few years later, in 2000, Colorado and Nevada followed suit by legalizing medical marijuana use. In the ensuing years, numerous states have adopted legislation providing for the legalization of medical marijuana. According to the National Conference of State Legislatures, 29 states plus the District of Columbia, Guam, and Puerto Rico allow use of medical marijuana. Despite the many states—now more than half—with statutes permitting marijuana use for medicinal purposes, many of these laws are silent on whether employers are free to deny employment to those who test positive for medical marijuana.

Employer-Friendly Decisions
Until recently, courts have ruled in favor of the employer on the issue of employer autonomy over marijuana-user employment decisions. For example, the court in Casias v. Wal-Mart Stores, Inc., No. 11-1227 (6th Cir. Sept. 19, 2012), held that Michigan’s medical marijuana act does not impose restrictions on private employers but rather provides a potential defense to criminal prosecution or other adverse actions by the state. Roe v. TeleTech Customer Care Management, 257 P.3d 586 (2011), held that medical marijuana laws do not protect users from adverse hiring or disciplinary decisions based on employers’ drug-testing policies. Similarly, the court in Johnson v. Columbia Falls Aluminum Co., 2009 WL 865308 (Mont. 2009), stated, “The Medical Marijuana Act specifically provides that it cannot be construed to require employers to accommodate the medical use of marijuana in any workplace.” Finally, the court in Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008), ruled that “[n]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees.”

Employee-Friendly Decisions
Despite these employer-friendly decisions, the legal environment is changing in a way that may require some employers to hire or retain known medical marijuana users. Indeed, a handful of states have implemented laws that prohibit employers from discriminating against lawful marijuana users, even when they test positive in conjunction with a standard preemployment drug test. Such states include Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, and Rhode Island. The changing landscape of medical marijuana use permissibility has led many employers to question where their employment policies stand.

Massachusetts court looks at situation as a disability discrimination claim. Massachusetts’s highest court in July 2017 became the first nationally to rule that many job applicants and employees who are medically certified to use marijuana cannot be automatically denied employment if they test positive for the drug.

In Barbuto v. Advantage Sales & Marketing, LLC, 148 F. Supp. 3d 145 (D. Mass. 2015), the plaintiff was hired for a marketing position but then discharged after one day because her drug test came back positive for marijuana. The plaintiff previously had told her supervisor that she would test positive because she had been medically certified to use marijuana for relief from her gastrointestinal disorder. She used marijuana at her home in the evening, two or three times weekly. The employer in Barbuto terminated the plaintiff on the grounds that she violated the federal Controlled Substances Act, which prohibits marijuana use of any kind—medicinal or recreational. The trial court adopted the employer’s position and immediately dismissed the plaintiff’s claim.

On appeal, the Massachusetts Supreme Judicial Court classified the plaintiff’s gastrointestinal disorder as a “handicap” under the state’s antidiscrimination statute and analyzed the claim as a court would any other disability discrimination case. In other words, the high court concluded that the lower court should have heard evidence on whether the employer could have reasonably accommodated the plaintiff’s use of medical marijuana without the employer suffering an undue hardship. The high court also held that the employer had an obligation to consider the proposed accommodation by engaging the plaintiff in an interactive process. In that process, employers in Massachusetts now must “determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of [the employers’ drug-free workplace] policy.” If there is no “effective medical alternative,” the employer must prove that employing a medical marijuana user would cause an undue hardship. These obligations could prove daunting for employers whose managers and human resources professionals are not trained medical professionals.

Connecticut court proscribes federal preemption of state marijuana law. More recently, on August 8, 2017, a Connecticut federal district court in Noffsinger v. SSC Niantic Operating Co., LLC, No. 3:16-cv-01938 (JAM) (D. Conn. Aug. 17), held that various federal laws prohibiting the use of marijuana do not preempt Connecticut’s Palliative Use of Marijuana Act (PUMA), which protects job applicants and employees from employment discrimination based on lawful medical marijuana use. In that case, the prospective employee’s offer of employment was rescinded by a nursing home based on the prospective employee’s positive drug test for marijuana. The prospective employee used medical marijuana at night to treat her post-traumatic stress disorder and had informed the employer of such prior to the drug test and ensured the employer that she would not be under the influence during work hours. The job applicant filed suit alleging discrimination under PUMA’s antidiscrimination provision. The nursing home moved to dismiss, asserting that the plaintiff’s PUMA claim was preempted by the Controlled Substances Act; the Americans with Disabilities Act; and the Food, Drug, and Cosmetic Act. The court found no federal preemption of PUMA, emphasizing that none of these laws makes it illegal to employ a marijuana user. The court also rejected the nursing home’s claim that it had a “federal contractor” defense.

The Noffsinger decision effectively concludes that marijuana’s unlawful status under federal law does not necessarily bar an employee or prospective employee from asserting a discrimination claim based on state medical marijuana laws. Although this decision is not binding on other courts, the court’s reasoning could prove to be persuasive to courts in other jurisdictions. Notably, other courts, including those in New Mexico (in 2016) and Oregon (in 2010), have emphasized federal illegality of marijuana in holding that employers may refuse to hire medical marijuana users under any circumstances.

Circumstances impact judicial decisions. This is not to say that employers can never reject the employment of medical marijuana users. Rather, it depends on the circumstances and the state in which the employer is located. For instance, in Barbuto, the Massachusetts Supreme Judicial Court held that an undue hardship would exist if the employer can demonstrate that continued use of marijuana would impair the employee’s work or would pose an “unacceptably significant” safety risk. In addition, employees subject to the U.S. Department of Transportation regulations, as well as certain employees of federal government contractors obligated to comply with the Drug-Free Workplace Act, are prohibited from employment if they use marijuana.

Conclusion
As a best practice for litigation avoidance, an employer’s written policies should state that the employer’s goal is a drug-free workplace and reserve the employer’s right to engage in drug testing in accordance with applicable laws. Nevertheless, in light of what appears to be a new trend expanding protections for individuals who use medical marijuana, employers should check for updates as to how their jurisdictions are handling the issue. The changes in marijuana laws during recent years provide incentives for employers to not only review and, if necessary, update drug-testing policies to make sure that they comply with federal, state, or local law but also retrain supervisory employees.


Jayde Brown practices at Andrews Kurth Kenyon in Dallas, Texas.


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