What’s that Smell? Medicinal Marijuana Spells Change in the Air for Employee Drug Testing Policies

ISSUE: In states that have legalized the use of marijuana for medicinal purposes, employers may no longer be able to deny employment to applicants who test positive for marijuana. In a recent decision, the Massachusetts Supreme Judicial Court held that a state law legalizing the use of medicinal marijuana justified a former employee’s disability discrimination claim, despite the fact that marijuana is still illegal under federal law.

In Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Court rejected a employer’s argument that a former employee was not a “qualified handicapped person” under Massachusetts law because the accommodation she sought—her continued use of medical marijuana—is a crime under federal law. After accepting an entry-level position, the plaintiff notified a company representative that she would test positive for marijuana on a mandatory drug test because she was prescribed the drug to treat her Crohn’s disease. The representative told her that her medicinal use of marijuana would not be a problem. After she completed her first day of work, plaintiff received a call from HR, notifying her that she was being terminated for testing positive for marijuana because “we follow federal law, not state law.”

“The fact that the employee's possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation,” the Massachusetts Supreme Court reasoned. “The only person at risk of federal criminal prosecution for her possession of medical marijuana is the employee. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.”

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IMPACT: As the first case of its kind, Barbuto sets the stage for how medicinal marijuana use in the workplace may be treated by courts in the future. It remains to be seen how this court’s line of reasoning will play out for employers with statutorily or contractually required drug-free workplace programs that include testing for marijuana. As this area of law continues to develop, employers operating in states that have legalized the medicinal use of marijuana should consider the following:

• Ensure that their drug testing policy is up to date and clearly states the employer’s position on marijuana use.
• Be cautious with regard to denials based on a positive drug test.
• If an employee requests an accommodation involving the use of medicinal marijuana, engage the employee in the interactive process and contact your local Q&B attorney for further assistance.

For more information on determining independent contractor status, please contact your Quarles & Brady attorney or:

• Otto Immel: (239) 659-5041 / otto.immel@quarles.com