Thursday, July 20, 2017

Marijuana Update: When “we follow federal law, not state law” Misses the Mark

As state laws regarding both medicinal and recreational marijuana use become more lax, it comes as no surprise that workplace-related issues arise.  Testing for marijuana is especially challenging since a person can test positive for days, sometimes weeks, after use, depending on how frequently the person uses.  Therefore, even if a workplace policy prohibits a person from being “high” on the job, a drug test alone would not be conclusive proof.

Earlier this week, the Supreme Judicial Court of Massachusetts held that an employer unlawfully terminated one of its employees for testing positive for marijuana.  The employer in that case, Advantage Sales and Marketing, LLC (ASM), offered Cristina Barbuto an entry-level position, pending a drug test.  Barbuto informed an ASM representative that she would test positive for marijuana because her physician prescribed her the drug to treat the side-effects of her Crohn’s disease, making her a qualified medical marijuana patient under Massachusetts law.  Barbuto stated that she would not use the drug before or during work, as she only uses small quantities of the drug at her home, two to three nights per week.  The ASM told Barbuto that her medical marijuana use was not an issue and, after Barbuto submitted to the drug test, she started her first day of work.  Later that evening an ASM Human Resources employee informed Barbuto that she was terminated for testing positive for marijuana and, in justifying the termination, stated, “we follow federal law, not state law.”  In response, Barbuto filed a complaint alleging, amongst other claims, handicap discrimination.

Barbuto alleged that, as a qualified handicapped person, a waiver of ASM policy on marijuana was an appropriate accommodation.  The Superior Court of Massachusetts stated that even if an employer had a policy prohibiting the use of lawfully prescribed medication, the employee would still “have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy.”

The court acknowledged that marijuana continues to be a Schedule I controlled substance under Federal law, regardless of whether it was lawfully prescribed by a physician pursuant to state law.  However, the court was not persuaded by ASM’s reliance on Federal law to justify the termination of Barbuto since, under Massachusetts law, a prescription for medical marijuana is treated the same as any other prescribed drug.  The court, relying on the Massachusetts Medical Marijuana Act which states that a qualified patient will not be denied “any right or privilege” due to his or her medical marijuana use, found that the use of medical marijuana was not a facially unreasonable accommodation.  Even if it were, the employer nonetheless had a duty to explore other alternatives before terminating the employee.  Some employers, such as Federal contractors or those receiving Federal grants, will be able to show that allowing the use of medical marijuana will cause an undue burden, thereby making it an unreasonable accommodation.

This case raises the question: "What are your workplace policies on marijuana use?"