Off-Duty Medical Marijuana Use Not Grounds to Rescind Hire

An employer may be liable for declining employment based on an individual's off-duty use of medical marijuana, one state's highest court has held. Employers should bear in mind the framework established by this court when considering changes to or implementation of a blanket employee drug policy, cautions ABA Section of Litigation leaders. The decision underscores the need for employers to "review their drug use policy to see if they are able to accommodate an employee's medical marijuana use" says Tracey Salmon-Smith, member of the Section of Litigation Council.

Employee Dismissed for Medical Marijuana Use
Shortly after an employee accepted a position with an employer, she was told she would need to pass a drug test. At that time, the employee told her new supervisor that she would not pass the test because she used prescribed medical marijuana treat her Crohn's disease. Also at that time, the employee told her supervisor that she did not use medical marijuana daily and would not use it before or during work. The supervisor said that the use "should not be a problem."

The employee arrived for her first day of work and underwent a training program. Following her first shift, a human resources representative informed the employee that she was terminated from the position because she tested positive on the drug test. The employer told the employee that it followed "federal, not state law" upon her dismissal.

The Lawsuit
The employee sued her former employer and the human resources representative who dismissed her from her position, alleging 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 denied all of the employee's claims except the claim for invasion of privacy. On appeal, however, the court held that it was illegal for an employer to terminate a qualified "handicapped person," who is capable of performing the essential functions of the position with a reasonable accommodation, unless the employer is able to demonstrate that the accommodation would be unduly burdensome to the employer's business.

The Supreme Judicial Court, Massachusetts' highest court, overturned the dismissal of the employee's disability claim, but affirmed the dismissals of her other claims for violation of the medical marijuana statute and wrongful termination in violation of public policy. In addition, the court held that nothing in the medical marijuana statute's text provided for a private cause of action for an individual claiming to have been fired for the off-duty use of medical marijuana.

Calling on the will of the Massachusetts voters when they passed the medical marijuana law in 2012, the court reasoned that no such cause of action was approved by the ballot initiative. However, "the court gave the legislature a roadmap for creating a private right of action—specifically referencing language in other state's statutes which the court believed supported findings of a private right of action in those states," opines John S. Morris III, member of the Section of Litigation Council.

Employers Need to Reconsider Blanket Drug Policies
Employers in states with laws allowing medical marijuana use should be cautious of blanket drug policies denying the use of marijuana as a prerequisite for employment, Section leaders warn. "Blanket prohibitions may not be legal, so employers must review their policies," adds Salmon-Smith. Blanket policies can cause an inability to be flexible in a changing environment that may now require employee accommodations, she continues. "Employers in states where medical marijuana is legal should not promulgate hard line policies against medical marijuana use, and should train their employees against enforcing strict, blanket policies against it," notes Kelly M. Matayoshi, chair of the Section's Employment & Labor Relations Law Committee.

Court Finds That Some Accommodations May Not Be Unduly Burdensome
The court 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 the an employer's drug policy to permit its use is a facially reasonable accommodation." "The court found that this accommodation was not facially unreasonable, meaning that it was a feasible accommodation in this instance. There are times, however, when there are unfeasible accommodations requested of employers, but under these circumstances, the employees' use of medical marijuana was not unfeasible," opines Salmon-Smith. 

Employment Policies Should Be Interactive Between Employer and Employee
"While the court did not rule that an employee must be accommodated for their medical marijuana use, employers are on notice that they should engage in the interactive process and evaluate whether the medical marijuana use is a reasonable accommodation" says Matayoshi. This case shows that employers who "never explore whether there are other options with an employee make a mistake in terms of dealing with employees with disabilities," suggests Salmon-Smith. Moving forward, employers must consider when the allowance of off-duty medical marijuana use would be unduly burdensome to their business when considering an employee's request for an accommodation.


Josephine Bahn is a contributing editor for Litigation News.


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