Are Medical Marijuana Users Entitled to Reasonable Accommodation? The Federal Government Says No, but an Increasing Number of States are Saying Yes!
The increasing use of marijuana as a new treatment for medical ailments is creating a complex issue for employers. Under Federal law, marijuana remains a Schedule I controlled substance under the Controlled Substance Act, making its possession and use a crime regardless of whether it has been approved by a physician. As its use and possession is illegal, the Americans with Disabilities Act (“ADA”) does not recognize the need for medical marijuana as a disability or as a reasonable accommodation for the treatment of a recognized disability. While Federal law is clear on an employer’s obligations to disabled employees and applicants, obligations under state law vary widely.
Nationally, states have taken varying steps towards legalizing marijuana. Thirty-two states have legalized marijuana for medical use. Of that group, thirteen afford employees some form of “protected status” as a medical marijuana user. These protections range from not penalizing an employee for being a medical marijuana user, to expressly prohibiting an employer from failing to hire or terminate an employee for being a medical marijuana user even if they have failed a drug test because of their use.
Massachusetts is the latest state to join this group of thirteen, with its Supreme Court declaring that employees and applicants holding medical marijuana cards may claim handicap/disability discrimination if they are denied employment merely for testing positive for marijuana on a drug test. Thus, in Barbuto v. Advantage Sales & Marketing, LLC, a former employee who used medical marijuana to treat her Crohn’s disease was fired after testing positive for marijuana during a company drug test. The employee sued her employer, alleging that she had been subjected to handicap discrimination and unlawful termination. Considering the rights afforded to individuals under Massachusetts’ medical marijuana legislation, the court noted that the Act stated that any person who met its requirements “‘shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.’” Given the prohibition on the denial of rights to medical marijuana users, the court concluded that a handicapped employee in Massachusetts has a statutory right to reasonable accommodation, which may include the use of medical marijuana off-site or at times where the employee is not in the workplace. While the court did not go so far as to say medical marijuana will always be a reasonable accommodation, just like in other situations where an employee makes an accommodation request, it is the employer’s burden to establish why the request is not reasonable.
Determinations such as this do little in the way of guidance for employers seeking to establish easily administered and clearly understood policies in the workplace. The employer wishing to maintain a drug-free workplace cannot be obligated to allow someone to work under the influence, but unlike alcohol which has easily identifiable measures of intoxication, establishing an employee’s level of intoxication with respect to marijuana can be speculative at best. As medical marijuana laws continue to develop, both through the legislatures and in the courts, employers will need to reevaluate their drug testing and workplace policies to ensure they do not contradict their state’s disability laws. This will be particularly important in situations where employers assert that an employee’s medical marijuana accommodation would cause them an undue hardship. The difficulty that remains is the lack of case law and regulatory guidance on this issue. Without structured regulations, employers will have to make choices between their preferred company standards and policies that limit potential exposure to litigation.
The Massachusetts Supreme Court’s decision also raises questions as to how other states that have yet to adopt medical marijuana protections, or those who have yet to clearly delineate the limits of medical marijuana user rights, will move forward. Will legislatures concerned with potential judicial overreach seek to more narrowly define the limits of medical marijuana laws? Will the growing acceptance of medical marijuana extend to it becoming a de facto reasonable accommodation? As this area of the law continues to develop, employers should evaluate their policies to confirm compliance with their respective state’s current laws and assess options to ensure they are not left exposed to future changes.
By: Michael Willats
Michael Willats is an attorney in the Firm’s Labor and Employment Practice Group. If you have any questions or concerns about this issue or any other matter, please contact Michael directly at 813-223-1099.
 477 Mass. 456 (July 17, 2017).
 Id. at 459 (quoting 2012 Mass. Acts c. 369, § 4).
 Id. at 464-65.
 Id. at 467.