While the relaunch of the blog has been delayed a bit more (I swear it’s coming soon), it’s time to have another post in the interim. My colleague Gary Starr is back with an interesting decision from the state next door — Massachusetts. As some Connecticut employers cross state lines (and marijuana cases continue to arise), the case is a reminder that the law continues to evolve in unexpected ways.
Many states have approved the use of medical marijuana, despite the fact that the federal government continues to classify marijuana as a Schedule I controlled substance. As a result there is a tension between state rights to use medical marijuana and federal law prohibiting its possession.
The Massachusetts Supreme Judicial Court had an opportunity to determine how to balance the rights of an employee who had been prescribed and was taking medical marijuana for Crohn’s Disease versus the employer’s interest in complying with federal law and maintaining a drug free work place. The Court found that the employee had sufficiently alleged that she was a qualified individual with a disability who was entitled to a reasonable accommodation related to use of medical marijuana.
As a result, her firing after testing positive could be challenged and she could pursue a disability discrimination claim under state law.
As part of the hiring process, a new employee was required to take a drug test. She immediately explained to her supervisor that she suffered from Crohn’s disease and she had been prescribed and was using medical marijuana which was improving her appetite and allowing her to stabilize her weight. She said that she did not take it before work or during working hours, but that if tested, she would test positive. After being tested and getting a positive result, the human resource administrator called and fired her. When the employee tried to explain the she had a prescription, the administrator told her that the company follows federal law, not state law.
The employee ultimately sued in state court claiming that she was being discriminated against because of her disability and that the company had failed to accommodate her disability.
The lower court had dismissed the case, but the highest Massachusetts court concluded that the employee had sufficiently alleged that she had a disability, that she was qualified for the position, and that she was entitled to a reasonable accommodation. As a result, the case was sent back to the lower court for further proceedings.
The high court, however, also made clear that the employer could still win, but the employer must show that the accommodation was not reasonable and/or caused an undue burden. The court noted that the employee could not come to work intoxicated, nor could the employee engage in tasks that could pose a risk to the public.
It also noted that if the employer was subject to federal laws related to a drug free work place or similar obligations, then the accommodation could be found unreasonable.
In Massachusetts, employers must not simply apply a drug free work environment policy, but must look at each situation to determine whether the employee is entitled to a reasonable accommodation. In states that have adopted medical marijuana statutes — like Connecticut — employers must decide whether the employee has a disability, how to handle a request for an accommodation, and whether there is a compelling reason to deny the accommodation based on undue hardship.
It is also critically important to meet with and discuss the situation with the employee to determine whether there is an alternative to the use of medical marijuana and to review how the job is structured to see if the employee can do the essential functions without violating company policies or impairing the company’s business operation. It is also important to determine the scope of the medical marijuana statute to determine whether employees have additional employment rights under state statutes.
In states where an employee has been prescribed medical marijuana, employers may not be able to fire an employee who has simply failed a drug test. More questions must be asked before firing someone who tests positive for marijuana.