In a landmark opinion issued on July 17, 2017, the Massachusetts Supreme Judicial Court (SJC) opened the courthouse doors to employees claiming to have been wrongfully terminated by their employers for the off-site use of medical marijuana.
The plaintiff in this case uses marijuana, prescribed by her doctor, to treat Crohn’s disease. After she was fired from her job for testing positive on a pre-employment drug test, she sued the employer on a number theories including handicap discrimination under the Massachusetts antidiscrimination statute, invasion of privacy, violation of the Massachusetts medical-marijuana statute, and wrongful termination in violation of public policy. The trial court dismissed all of the employee’s claims except the claim for invasion of privacy. The employee appealed the dismissal of the other claims.
Most of the SJC’s 27-page opinion addresses the employee’s handicap-discrimination claims. Under the Massachusetts antidiscrimination statute, G.L. ch. 151B, it is illegal for an employer to terminate an employee who is a qualified handicapped person who is capable of performing the essential functions of the position with reasonable accommodation, unless the employer can demonstrate that the accommodation would impose an undue hardship to the employer’s business.
The Massachusetts medical-marijuana statute, passed by ballot initiative in 2012, protects qualified patients with certain debilitating medical conditions from prosecution for the possession of marijuana for personal medical use. The statute specifically states that employers are not required to make an accommodation for the on-site medical use of marijuana. However, in this case, the plaintiff did not use marijuana at work and was not under the influence of the drug while on duty. The issue before the court was whether the off-site use of medical marijuana can be a reasonable accommodation under some circumstances.
The employer argued that permitting the employee’s continued off-site use of medical marijuana was a “facially unreasonable” accommodation because the possession of medical marijuana is a crime under federal law. The SJC rejected this argument, and held that “[t]he fact that the employee’s possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation.” The SJC reasoned that only the employee is at risk of federal criminal prosecution for the employee’s off-site possession of medical marijuana. Instead, the SJC held that “[w]here, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.”
The SJC also held that, as with other requests for reasonable accommodation, it is the employer’s burden to show that the employee’s request for an accommodation for the off-site use of medical marijuana would cause an undue hardship to its business. The SJC suggested that employers might be able to show that continued use of medical marijuana could interfere with the employee’s performance of her job duties, or present an “unacceptably significant safety risk to the public, the employee, or her fellow employees.” The SJC acknowledged that some employers may be able to establish an undue hardship by showing that employees’ use of medical marijuana could harm the employers’ business due to contractual or statutory obligations, such as federal Department of Transportation requirements applicable to transportation businesses, or requirements applicable to federal contractors regarding drug-free workplaces. However, as the SJC pointed out, these arguments are for the employer to make at the summary-judgment or trial stage, and do not affect whether the employee can assert a claim in the first place.
While the SJC reversed the dismissal of the employee’s handicap-discrimination claim, the court affirmed the dismissal of the claim for violation of the medical-marijuana statute, finding that no private cause of action is expressed or implied in the statute. The SJC also let stand the dismissal of the employee’s claim for wrongful termination in violation of public policy, declining to expand this limited exception to “at-will” employment.
This decision marks the first time that a court has found for the employee in a medical marijuana case. Courts in California, Colorado, and Washington state have ruled against employees in such situations. The SJC distinguished those cases by noting differences in the statutory language at issue, or the nature of the plaintiffs’ claims. With the vast majority of states permitting the medical use of marijuana, and a growing number of states allowing recreational use of the drug, there is sure to be an increase in litigation relating to marijuana and the workplace.
Until a settled body of law develops—or the federal government takes definitive action one way or the other on marijuana policy—employers and their counsel should carefully review workplace drug use and testing policies and should examine practices for handling requests for accommodations from disabled employees to ensure that they are in full compliance with applicable state antidiscrimination and medical-marijuana statutes.
Adam M. Hamel is with McLane Middleton in Woburn, Massachusetts.