Conflicting Marijuana Laws Leave Employers High on Confusion

First in a Series of Blogs

Asima J. Ahmad

Over half of the states in the country allow for the limited possession of marijuana for medicinal purposes. Several states, including New York, Connecticut, and Illinois, even provide explicit workplace protections to prevent adverse employment actions against medical marijuana patients. However, the Controlled Substances Act (“CSA”) makes it a federal crime to use, possess, or distribute marijuana. Under federal law, marijuana remains classified as a Schedule I controlled substance, regardless of whether it has any acceptable medical uses. So what should an employer do when an applicant or employee fails a drug test due to marijuana use, or after being informed that an applicant or employee needs to use marijuana as part of his or her medical treatment? These questions are slowly making their way into courthouses across the country, and two recent cases may prove to be instructive.

First, in Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 2017 WL 3015716 (Mass. July 17, 2017), the Supreme Judicial Court of Massachusetts held that an employee who was terminated after failing her drug screen due to medical marijuana use had a claim for handicap discrimination and interference. Specifically, the court explained that permitting the use of medical marijuana could be a reasonable accommodation for an employee with a legal marijuana prescription under state law. The court rejected the employer’s argument that such accommodation would be per se unreasonable because federal law prohibits any possession of marijuana and noted that even if such an accommodation was facially unreasonable, the employer would still have a legal obligation to engage in the interactive process to determine whether another medicine permitted under the company’s drug policy could treat the employee’s medical issues. Finally, the court explained that its decision did not necessarily equate to an employee prevailing in a disability claim, as the employer could offer evidence to demonstrate that the employee’s use of medical marijuana was not a reasonable accommodation. The employer could do so by showing that the proposed accommodation posed an undue hardship to the business or that it would violate the employer’s contractual or statutory obligations and jeopardize its ability to perform its business.

Most recently, in Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-CV-01938(JAM), 2017 WL 3401260, at *4 (D. Conn. Aug. 8, 2017), the U.S. District Court for the District of Connecticut held that federal law did not preclude enforcement of Connecticut’s medical marijuana statute, the Palliative Use of Marijuana Act (PUMA). Enacted in 2012, PUMA provides explicit protections against employment discrimination on the basis of medical marijuana use. When rejecting the employer’s argument that PUMA was preempted by three different federal statutes (the CSA, the Americans with Disabilities Act (ADA), and the Food, Drug and Cosmetic Act (FDCA)), the court held that the CSA and FDCA did not regulate employment, and therefore could not be in conflict with the PUMA’s anti-discrimination provision. Further, the court held that PUMA did not conflict with the ADA, as both statutes prohibit the use of marijuana at the workplace and neither regulate employee conduct outside of the workplace. The court noted that employers would not violate the CSA, or any other federal, state, or local law, merely by hiring a medical marijuana user, and that such an argument bordered on “absurd.” The court also held that PUMA provided for a private right of action, because without one, PUMA would have no practical effect, as the law does not provide for any other enforcement mechanism.

While state law protections for medical marijuana users in the workplace vary, and the law is still largely unsettled, employers should not automatically deem applicants and employees ineligible for a role due to their medical marijuana use. Instead, Human Resources should consult with the applicant or employee, engage in the interactive process, and make an accommodation (or non-accommodation) decision based on objective factors such as the nature of the disability, the frequency and quantity of the individual’s marijuana usage, the position’s responsibilities, and other related circumstances. Employers should reach out to counsel to assist in determining next steps in these fact-sensitive situations.

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