On July 17, 2017 the Massachusetts Supreme Judicial Court ruled that under the Massachusetts Anti-Discrimination law an employer may be required to accommodate an employee who is a current user of medical marijuana regardless of the employer’s drug free workplace and drug testing policies.  While this decision is binding only in Massachusetts, it could represent the beginning of a significant shift in how employers will need to deal with employees using marijuana to treat a disability.

In Barbuto v. Advantage Sales and Marketing the employee claimed that before a drug test she notified her employer she would test positive because she has Crohn’s disease and was using lawfully prescribed marijuana under state law.  She indeed tested positive and was terminated as a result.  The issue is whether an employer may strictly enforce its drug free workplace policy or whether the employer is obligated to consider making an exception to the policy as an accommodation under state anti-discrimination laws.

As the legalization of medicinal marijuana expands to more states, employers have to decide how they will enforce their drug free workplace policy when employees with a disability test positive. Where the use is for medical reasons, the employer must consider whether disability discrimination laws come into play.  Many employers have concluded that they would continue enforcing their drug free workplace policy because the employee is not protected under the Americans with Disabilities Act (ADA).  Individuals who currently engage in the illegal use of drugs are specifically excluded from the ADA’s definition of an “individual with a disability” and marijuana use for any reason is still illegal under federal law.  Therefore current users of marijuana are generally not protected by the ADA.

This seemed like a relatively straightforward analysis to apply in any jurisdiction.  After all, marijuana is still illegal under federal law which applies throughout the United States.  The Massachusetts court, however, determined that the drug’s status under federal law was not relevant.  The court concluded that the employee was not doing anything illegal under state law and the employee was seeking protection under the state anti-discrimination law, which requires employers to accommodate employees with a “handicap.”  Since the employee’s use of marijuana did not exclude her from coverage under the state anti-discrimination law, the employer would have to treat the employee just like any other disabled employee and determine if a reasonable accommodation would enable the employee to remain employed. 

Employers in Massachusetts must now engage in a case by case assessment of whether accommodating medical marijuana use is reasonable.  While the employer is not required to tolerate employees coming to work under the influence, it’s unlikely that a simple preference to have the entire workforce free of marijuana in their system will constitute an undue hardship sufficient to deny the accommodation.  Employers will need to establish some objective reason why allowing the employee to remain employed following the positive test will cause a hardship on its business.  For example, a federal contractor may argue that it has obligations under the Drug-Free Workplace Act.  This law requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.  Also, in some states, like Florida, employers may receive a reduction in workers’ compensation premiums for maintaining a drug free workplace. 

For now we will have to see how this issue evolves on the state level and employers should consider revisiting their drug testing policies in states where medical marijuana is legal.