Half Baked: Medical Marijuana in the Workplace

The landscape of medical marijuana is an evolving area that can be confusing for both employers and employees, so let’s talk about it in clear language.

This November it will be seven years, since voters in Massachusetts voted to legalize medical marijuana. On January 1, 2013, the law became effective to decriminalize medicinal marijuana use with a doctor’s approval and the issuance of a state registration card along with fees.

Since the legalization of medical marijuana the BIG question at the forefront for employers is whether an employer must accommodate an employee’s use of medical marijuana for a disability. So, if you’re questioning how to handle the use of medical marijuana by an employee here is what you need to know.

First, under the federal law, the Americans with Disability Act (ADA) states if the employee’s use of medicinal marijuana is allowed under state law as it is in Massachusetts, federal law does not require the employer to accommodate the employee’s off duty use of medicinal marijuana. Because any use of marijuana medical or otherwise is a violation of federal law as the drug is still illegal at the federal level.

If you’re still questioning if you can fire an employee for using medical marijuana, let’s take a look at Massachusetts law. Massachusetts takes the opposite view of the federal law and requires that an employer provide a reasonable accommodation to an employee for off duty medical marijuana use even if an employer has a policy of no drug use. This is what the Massachusetts Supreme Judicial Court said in Barbuto v. Advantage Sales and Marketing, LLC .

The employee in Barbuto was offered a position which she accepted. After her acceptance, she was told that she had to take a mandatory drug test. She told the employer that she was using medical marijuana for a medical condition. The employer replied that her medicinal use of marijuana should not be a problem. She took the drug test and was fired for being in violation of the employer’s drug policy because the test results were positive for marijuana.

The high court found that the employer had an affirmative duty to engage in dialogue with the employee to determine if there were medical alternatives that were as effective as the prescribed medication which wouldn’t be in violation of the employer’s drug policy.

Massachusetts protects employees who use medical marijuana off duty. The federal law does not require the employer to accommodate the employee’s off duty use of medicinal marijuana. So, employers it is wise to ensure that your drug policies are in line with the state law where business is conducted, so, if you conduct business in Massachusetts the drug policy should allow for an accommodation for the use of medical marijuana off duty in keeping with the decision in Barbuto.

This article is for information purposes only and is not meant to be construed as legal advice. If you are interested in discussing this topic further, you may contact me at jennie@simplygoodlaw.com or at 978-681-0017.