Medical Marijuana: Accommodating Employees Who Use It

Here is the latest tip for employers: Do not be too quick to “just say no” to medical marijuana. The “it’s a federal crime” escape hatch employers invoked previously has been closed by more and more courts in states with medical marijuana laws.

By Stephanie Dutchess Trudeau
September 2017

Here is the latest tip for employers: Do not be too quick to “just say no” to medical marijuana. The answer that “we follow federal law” is not so easy anymore. The “it’s a federal crime” escape hatch employers invoked previously has been closed by more and more courts in states with medical marijuana laws. It is a welcome opportunity for employers that were not comfortable making employees choose between keeping their jobs or keeping a medical treatment.

The conflict between federal law outlawing marijuana and state laws legalizing medical marijuana led many employers to believe the safest policy was to prohibit employee use of medical marijuana. Some employers felt they had little choice but to say no. If they allowed it and an employee who used medical marijuana caused injury or harm, the employer’s decision not to follow federal law would be questioned as unwise or, worse yet, deemed reason for liability. Some employers assumed that federal law trumped state law. But the landscape has changed.

In the Courts
A Michigan court has ruled that the federal Controlled Substances Act labeling marijuana a Schedule I drug does not contain an express preemption provision. Forest City Residential Management v. Beasley, Case No. 13-14547, United States District Court, E.D., Michigan (Dec. 3, 2014). A court in Massachusetts ruled: “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.” Barbuto v. Advantage Sales and Marketing, LLC, Supreme Judicial Court of Massachusetts, no. SJC-12226, July 17, 2017. A court in Rhode Island ruled that refusing employment to a person who cannot pass a drug test is disability discrimination because it puts a medical marijuana user in a worse position than a recreational user of marijuana. It also concluded that federal law does not preempt Rhode Island’s medical marijuana law which prohibits employers from refusing to employ a person solely because of his or her status as a medical marijuana card holder. Callaghan vs. Darlington Fabrics, Case No. PC-2014-5680, Rhode Island Superior Court (May 23, 2017).

Accommodation
Deference to federal law is no longer automatic. “Accommodation” is the watchword now. It is not presumptively unreasonable to accommodate medical marijuana. Employers inclined to be more tolerant of, or even friendly toward, marijuana use have reason to do so.

Both the Massachusetts and Rhode Island courts rejected arguments from employers that raised federal law as a defense to employment discrimination claims. The courts ruled that employers had a duty to use the interactive process to see if there was a way to accommodate employees or applicants who were treating their medical conditions with medical marijuana.

The Massachusetts decision involved an employee whose physician was treating her Crohn’s disease with medical marijuana. Massachusetts has a medical marijuana act, which declares that patients must not be denied any “right or privilege” because of their medical marijuana use. Massachusetts also has a handicap discrimination law. The employee used the employment law to bring a claim for handicap discrimination after she was fired for testing positive for marijuana. The employer raised the defense that no reasonable accommodation was possible because possession of marijuana violates federal law, but the court disagreed that accommodating the use of medical marijuana was facially unreasonable.

The plaintiff, Christina Barbuto, had a physician’s certification that qualified her as a medical marijuana patient. She applied for and was offered an entry level job working at a supermarket promoting products. When told she must take a mandatory drug test, she disclosed that she would test positive for marijuana because she used it in small quantities at home, usually in the evening, two or three times a week, to treat her Crohn’s disease. She said she did not use marijuana daily and would not use it at work or before work.

The employer trained her and sent her to an assignment, where she worked for a day. That evening, after her drug test results were positive for marijuana, the employer’s HR representative discharged Barbuto and explained “we follow federal law, not state law.” The employer, Advantage Sales and Marketing, LLC persuaded the trial court to dismiss Barbuto’s disability claim, but it was reinstated on appeal. The appellate court wrote: “Where an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it.” The employer’s uniformly applied drug policy and the federal law prohibiting marijuana possession were not a clear defense.

At this stage of the case, the court did not hold the employer liable to the employee. The court said that the employer might be able to show that it would be an undue hardship for it to accommodate the employee’s use of medical marijuana. Examples of ways the employer could show undue hardship included that the employee’s continued use of medical marijuana impaired her work performance, or posed an unacceptable safety risk, or violated an employer’s contractual or statutory obligations such as Department of Transportation regulations prohibiting safety-sensitive employees from using marijuana. However, the court stated that the employer had a duty to participate in the interactive process before terminating the plaintiff’s employment. Barbuto’s employer was ordered to engage in the interactive process with her to determine whether there were equally effective medical alternatives to the use of medical marijuana and which would not violate the employer’s policy.

In Rhode Island, the decision involved an applicant who was denied a job because of her medical marijuana use. Christine Callaghan was a Master’s student studying textiles at the University of Rhode Island who was seeking an internship as a requirement of her program. Her professor referred her to Darlington Fabrics. When she met with the Human Resources coordinator and signed Darlington’s acknowledgement that she would have to take a drug test before being hired, Callaghan disclosed that she held a medical marijuana card, which was permitted by Rhode Island law. During a subsequent conversation with Darlington’s HR representatives, Callaghan stated she was currently using medical marijuana, that as a result she would test positive on the drug screen, that she would not use marijuana at work or bring it to work, and that she was allergic to many other pain killers. Later, Darlington told Callaghan it was unable to hire her.

When Callaghan sued, the employer raised the defense that its refusal to hire her was based not on her card holder status, but her use of marijuana outside the workplace that prevented her from passing a drug test. Darlington also defended on the basis that the Rhode Island medical marijuana law was preempted by the federal Controlled Substances Act, which prohibits the possession of marijuana. Illegality under federal law did not carry the day in Rhode Island where the judge found little connection between the federal law and Rhode Island’s state law because “The purpose of the Controlled Substances Act — the ‘illegal importation, manufacture, distribution, and possession and improper use of controlled substances’ — [is] quite distant from the realm of employment and anti-discrimination law.” The Rhode Island court was troubled that refusing a medical marijuana patient employment based on a positive drug test result put the patient in a worse position than a recreational marijuana user because the recreational user has the option to cease long enough to pass the drug test and get hired, and subsequently resume use without being subject to future drug tests, giving him or her the luxury of smoking recreationally at will. In contrast, the medical marijuana patient who must use medical marijuana once or twice a week because of a medical condition, would not be able to cease for long enough to pass the drug test.

Conclusion
The trend in favor of medical marijuana has moved from the legislature to the courts and into employment law. Employers who wish to allow it in their workforce may have permissible grounds to do so.

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Stephanie Dutchess Trudeau is a partner at Ulmer & Berne LLP. She is a Board Certified Specialist in employment and labor law, representing businesses and individuals across all industries. She can be reached at 216-583-7008 or strudeau@ulmer.com.

Reprinted with permission from the September issue of Employment Law Strategist. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.