Cannabis Shift Impacting Employers

Marijuana policy made headlines twice in one week, on matters that may be potential game changers for employers.

On July 17, Massachusetts’ Supreme Judicial Court ruled in favor of a woman fired for using medical marijuana in Barbuto vs. Advantage Sales and Marketing. She will be able to sue her former employer for discrimination. One week later, the head of Maine’s Department of Labor reported to a legislative panel that state employers would be hamstrung by a prohibition on drug testing once the new recreational marijuana bill goes into effect.

Massachusetts: A Closer Look

In 2013, medical marijuana became legal to use in Massachusetts. In the summer of 2014, Cristina Barbuto was offered an entry-level position at Advantage Sales and Marketing so long as she passed a mandatory drug test. Barbuto informed Advantage that her test would come back positive because she required medical marijuana to help with her Crohn’s disease, a debilitating gastrointestinal condition.

The supervisor at Advantage told Barbuto that her medical marijuana use would not be a problem. Barbuto went through training, received her uniform and was assigned a location for her employment. After one day of work, Advantage’s human resources representative informed Barbuto she was terminated after testing positive for marijuana. The rep said the company followed federal law, which prohibits the substance in all forms, and not the state law.

Barbuto filed a complaint of discrimination against Advantage. The company argued that Barbuto could not allege she qualified as disabled, because her only accommodation — use of medical marijuana — was a federal crime. Additionally, her termination directly stemmed from failure to pass a drug test and not from her supposed handicap.

The court ruled that under Massachusetts law, use and possession of medical marijuana was “as lawful as the use and possession of any other prescribed medication,” and that the federal illegality of the drug did not make it unreasonable as an accommodation.

The court also took issue the company’s knee-jerk decision to terminate Barbuto.

“Even if the accommodation of the use of medical marijuana were facially unreasonable, which it is not, the employer here still owed the plaintiff an obligation under [Massachusetts law] before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use that was not prohibited by the employer’s drug policy,” the court said.

Failure to explore a reasonable accommodation alone is sufficient to support a claim of discrimination, it said.

The employer will have to prove Barbuto’s use of the medication caused undue hardship to the business in order to justify her termination.

Meanwhile, in Maine …

As was the case in many states during last year’s political race, legal use of recreational marijuana was up for debate in Maine. In November, the state passed the bill. Now, Maine is working to set up the parameters on the recreational drug, diving into how employers will be affected.

On July 24, Julie Rabinowitz, the state’s Department of Labor director of policy, operations and communications, addressed the state legislative committee formed to create the regulatory framework surrounding recreational use of marijuana. She argued employers were getting the short end of the stick.

The court ruled that under Massachusetts law, use and possession of medical marijuana was “as lawful as the use and possession of any other prescribed medication,” and that the federal illegality of the drug did not make it unreasonable as an accommodation.

Businesses won’t be able to reject applicants for testing positive for marijuana because the applicant might use it for medicinal purposes, she explained. Likewise, employers won’t be able to fire an employee for a positive drug test. Instead, the employer will have to prove the employee was impaired on the job.

Rabinowitz went on to discuss how employers in other states with legalized marijuana have more rights, citing Massachusetts, California and Colorado as examples. She urged Maine’s legislative committee to change the law to give employers more rights when it comes to the hiring and discharge of employees who test positive for marijuana.

The final decision was deferred to the legislature’s labor committee and will be a hot topic until the law goes into effect in February 2018.

What This Could Mean Long-Term

The tides are turning on how cannabis is perceived by the general population. Massachusetts and Maine aren’t the only states updating marijuana laws; 29 states and the District of Columbia have legalized the use of medical marijuana. Of those, eight states have legalized the use of recreational marijuana — four in the last year alone.

Other states have enacted decriminalization laws for possession of the substance, which treats an offense like a minor traffic violation — no threat of jail time and a reasonable fine.

In workers’ compensation, numerous cases debating whether an employer should accommodate for medical marijuana have been brought to the fore. The most significant sticking point has been the discrepancy between federal and state laws. Prior to Barbuto, courts tended to defer to the supremacy of federal law. Barbuto, however, establishes a precedent for courts to take a different approach.

Employers wishing to review their own state’s medical and recreational laws can do so here.