Medical and recreational marijuana would be legal in Wisconsin under a bill introduced late last week by State Representative Melissa Sargent. Representative Sargent introduced the bill, in part, as a revenue measure to help address the current budget stalemate in Wisconsin. Marijuana remains an illegal substance under federal law.

Marijuana, like other controlled substances and alcohol, has long been subject to employer regulation in the workplace. Work rules routinely prohibit possession or use of marijuana on the job, and many employers prohibit employees from being under the influence of marijuana (and other substances) while working. Recreational marijuana, if legalized, would most certainly remain subject to employer regulation. If marijuana is legalized for medicinal purposes, the analysis is not as clear.

The highest court in Massachusetts ruled on July 17, 2017, that employers can be held liable for disability discrimination if they terminate an individual for using legally prescribed marijuana. In Barbuto v. Advantage Sales & Marketing, LLC, SJC-12226 (2017), the Massachusetts Supreme Judicial Court ruled that plaintiff in that case can pursue claims under the state’s handicap discrimination law accusing her former employer of illegally firing her because she used medical marijuana to treat Crohn’s disease.

The court held that the use of medically prescribed marijuana is just as lawful as the use of any other prescription medication—even though it is illegal under federal law—and that such use away from an employer’s premises could constitute a reasonable accommodation under certain circumstances unless the employer can show its use would cause an undue hardship.

The Massachusetts ruling, although not binding in Wisconsin, certainly gives us pause to think. If marijuana is legalized for medicinal purposes and an employee is prescribed marijuana, employers may have to approach accommodation requests for medicinal marijuana in the same way they treat requests for any other potential accommodations. And if the Massachusetts ruling expands to other jurisdictions it may not be sufficient to say the marijuana is illegal under federal law.

Of course, the traditional analysis in a state discrimination case must be employed. In other words, does the employee have a handicap/disability, is an accommodation necessary and is marijuana use an appropriate reasonable accommodation based on the circumstances of the employee’s job duties and the employer’s workplace? In addition, will the off-site use of marijuana prevent the worker from performing the essential functions of the job or impact safety? Will Wisconsin’s law that prohibits discrimination on the basis of “use of lawful products” provide added protection for the employee?

This is the third time Representative Sargent has attempted to bring this issue to her colleagues for consideration. We doubt this bill will get much traction, but employers should continue to monitor both its progress and the significant issues that this type of legislation creates.