By James L. Rudolph, Esq. and Alex Robbins, Law Clerk
Medical marijuana users have faced significant backlash in the workplace, as employees testing positive for cannabis have generally been terminated or disciplined under some sort of “zero tolerance” employment policy. Employers and employees have raised numerous questions about these policies, especially given that federal law continues to prohibit marijuana use for any reason while simultaneously prohibiting most types of employment discrimination. Because medical marijuana laws are relatively new, however, there is no substantial case law on the subject, and many uncertainties remain.
Nonetheless, since 2006 there have been at least seven court cases brought by employees in several different states who were fired as a result of their off-site, state-sanctioned use of medical marijuana. Those employees predominantly argued that they had a disability under the state’s laws, and that making an exception to employment polices that would allow them to use marijuana away from work is a reasonable accommodation that their employer must make pursuant to the Americans with Disabilities Act. Nonetheless, the courts have upheld the employer’s decision to terminate the employee all seven times, suggesting that the firing of employees for medical marijuana use away from work does not constitute disability discrimination. In other words, medical cannabis laws only seem to protect individuals from criminal prosecution – not workplace discipline. It is worth noting that most state laws expressly state that employers are also not required to let an employee use marijuana or be impaired on the work site during work hours.
Despite these rulings, nine states do in fact include statutory language banning firing, refusing to hire, or other forms of employment discrimination against medical marijuana patients. (These states are Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, and Rhode Island. New York is currently the only state whose medical marijuana law provides that using medical marijuana is a disability under the state’s disability discrimination statute.) Because no cases involving the termination of such a person have been filed in any one of those states, it thus remains to be seen whether an employee’s status as a qualified medical marijuana user may afford the employee protection against disability discrimination in those limited circumstances.
In Massachusetts, nothing in the law requires any accommodation of any on-site medical use of marijuana in a place of employment – despite the fact that medical marijuana has been sanctioned in the Commonwealth, with certain limitations, since 2012. Though there has been no decision in any lawsuit challenging the right to terminate or discipline employees due to their medical marijuana use, it is therefore likely that employers may still lawfully prohibit employees from using marijuana at work, and may likewise discipline employees who violate such prohibition. This is an area of the law that will likely change. Employers should continually review their employment policies to ensure compliance with state and federal discrimination laws, as the law relative to medical marijuana changes.
