Utah lawmakers are working to revise Proposition 2, a voter-approved medical marijuana law. A special session has been set for this coming Monday, December 3rd to review a “compromised bill.” If approved, this new law would replace the ballot measure that was approved on November 6th.
Changes include removing the provision for growing your own marijuana and also creating a state-run dispensary model. The compromise is being made among marijuana proponents, including the Utah Patients Coalition and the Libertas Institute, and opponents, including the Utah Medical Association and The Church of Jesus Christ of Latter-day Saints. Supporters argue the new bill would help preserve public safety, while providing relief to patients.
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Out of four states that had marijuana on the ballot, three of them voted for legalization on Tuesday. Michigan legalized marijuana for recreational use (effective date in December, 2018), becoming the tenth state, along with Washington D.C., to do so, while Utah (effective date in December, 2018) and Missouri (effective December 6, 2018) legalized it for medical use, joining 30 other states and Washington D.C. North Dakota, the fourth state with marijuana on its ballot, voted against the legalization for recreational use (medical use has been legal there since 2016).
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Massachusetts Supreme Judicial Court Rules in Favor of Employee Terminated for Use of Medical Marijuana
The Massachusetts Supreme Judicial Court recently ruled in Barbuto v. Advantage Sales & Marketing LLC et all, a case that questions an employer’s obligation to make accommodations for an employee’s off-site use of marijuana for medical purposes under the Massachusetts Anti-Discrimination and Medical Marijuana statutes. In the ruling, the court decided that an employee may proceed with a claim of handicap discrimination after being terminated from employment based on a positive workplace drug test result for her off-site use of medical marijuana.
The employee in the case started a new job and explained her use of marijuana in treatment of her Crohn’s Disease to her employer when asked to submit to a drug test. She was terminated after failing the test. The employer based its termination decision on reasoning that they follow federal law, under which marijuana, for any use, is illegal, rather than state law. The employee then sued alleging violations of the Massachusetts Anti-Discrimination law and the state Medical Marijuana law, as well as alleging claims of invasion of privacy and violation of public policy. The employee argued that she “should not be faced with the cruel choice of treating her disability or earning a livelihood.” Specifically, she pled six claims:
(1) handicap discrimination in violation of G. L. c. 151B, § 4 (16);
(2) interference with her right to be protected from handicap discrimination in violation of G. L. c. 151B, § 4 (4A);
(3) aiding and abetting the employer in committing handicap discrimination in violation of G. L. c. 151B, § 4 (5);
(4) invasion of privacy in violation of G. L. c. 214, § 1B;
(5) denial of the “right to privilege” to use marijuana lawfully as a registered patient to treat a debilitating medical condition in violation of the Medical Marijuana Act; and
(6) violation of public policy by terminating her employment for lawful use of marijuana for medicinal purposes.
The Superior Court dismissed all of the claims except invasion of privacy. Ms. Barbuto then appealed to Massachusetts highest court, the Supreme Judicial Court, and oral arguments were heard. The Massachusetts Commission Against Discrimination (MCAD) also filed a brief arguing that the Medical Marijuana statute is meant to be liberally construed in order to promote equal opportunities in employment.
In reversing the lower court’s decision to dismiss the claims, the court noted the following, “Under Massachusetts law, as a result of the [medical marijuana] act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” The court also said “[w]here, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.”
Advantage Sales and Marketing (ASM), the employer in the case, argued that they should be able to take steps, including termination, to ensure a drug-free workplace, especially since under federal law, marijuana, for any use, is against the law. As such, ASM argued it had no obligation to permit an accommodation for such use.
In response to the employer’s argument, the court noted “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.” The court went further in discussing the extent the employer is obligated for an accommodation in the form of off-site use of medical marijuana by stating that the employer is, in fact, obligated to participate in the interactive process to explore whether there are any alternative, equally-effective medications that could be used that would be in compliance with the employer’s drug policy. Specifically, the court said “[a] qualified handicapped employee has a right under G.L. c. 151B, § 4(16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.”
According to the ruling, the failure to explore a reasonable accommodation is sufficient in itself to “support a claim of handicap discrimination provided the plaintiff proves that a reasonable accommodation existed that would have enabled her” to perform the essential functions of the job. Where no effective alternative exists, the employer then has the burden of proving that the employee’s use of medication would cause an undue hardship to the business to justify the employer’s refusal to make an exception to the drug policy.
The court did note a significant departure in their reasoning when it comes to “safety sensitive” positions or in situations where such use would violate an employer’s contractual or statutory obligations. If an employer can prove that the continued use of medical marijuana would impair the employee’s performance or pose an “unacceptably significant” safety risk to the public, the employee, or others, he or she would meet the burden to establish that the employee’s use of medical marijuana is not a reasonable accommodation, as it would impose undue hardship on the business. The court made specific note to the transportation industry as an example. As such, in the instances where an employer is dealing with safety sensitive positions, they may be able to show an unacceptable safety risk, thereby causing an undue hardship to the business.
With the court’s reversal of the dismissed claims, the plaintiff may now pursue her disability-related claims, along with her invasion of privacy claim in Superior Court. As for Massachusetts employers, while it may not be the guidance they were looking for, they now have specific direction as it relates to medical marijuana accommodations in the workplace. They must engage in the interactive process to accommodate an employee’s lawful use of medical marijuana and provide a reasonable accommodation, including permitting the off-site use of medical marijuana, unless such use can be proven to result in an undue hardship to their business.
Hire Image always recommends you consult with legal counsel when defining and implementing a drug screening program.
Arkansas amended its Medical Cannabis Amendment in favor of employers
In November of 2016, Arkansas legalized medical marijuana in Initiative 6, the Arkansas Medical Cannabis Amendment (MCA). Since then, Arkansas has taken steps that demonstrate the state has an employer-focused approach to marijuana when it comes to the workplace.
The MCA allows “qualifying patients” with certain medical conditions to purchase cannabis from state-licensed dispensaries When it comes to employers, the MCA, like most legislation in other states, makes it unlawful for an employer to discriminate against an “individual” based on his or her past or present status as a “qualifying patient.”
In an effort to clarify the obligations and restrictions on employers, Arkansas recently amended the MCA. Some of the more significant changes include:
• The MCA now only applies to employers with nine or more employees (employers with 8 or less are not subject to the MCA’s anti-discrimination provisions).
• The anti-discrimination provisions now apply only to “applicants” and “employees,” not all “individuals.”
• An employer now cannot be sued under the MCA in the following circumstances:
– if he or she is acting in accordance with a drug-free workplace program or policy
– if he or she is acting on a good faith belief the marijuana was possessed or used on the premises of the employer or during hours of employment.
– if her or she is acting on a good faith belief that the employee or applicant was under the influence of marijuana while on the premises of the employer or during hours of employment.
– if excluding or removing an employee or applicant from a “safety sensitive position” based on the employer’s good faith belief that he or she was engaged in the current use of marijuana.
• The MCA has a one year statute of limitations.
• Damages under the MCA are statutorily capped.
• Individuals, such as managers or supervisors, cannot be individually sued under the MCA.
Employer Takeaway: Employers should update their written policies and implement new practices if operating in a state with a medical marijuana law. Drug testing policies and procedures should also be reviewed and updated and “safety-sensitive” positions should be identified, along with written job descriptions for them.
Recent court cases in Rhode Island and Massachusetts demonstrate that employers need to consider human resource and legal issues surrounding both applicants and employees who use medical marijuana. These cases not only complicate matters for employers who conduct drug testing for drug-free workplaces, but also create difficulty in reconciling their own safety policies with the courts’ decisions. With these decisions, an employer’s independent right to hire and fire become increasingly complicated when it comes to cannabis use.
Maintaining a safe and productive workplace is paramount for employers, and pre-employment and ongoing drug testing is key. However, tests for marijuana do not measure current impairment, making it nearly impossible for an employer to ensure a safe workplace. Some states significantly restrict the circumstances under which employers can drug test employees. As such, employers are increasingly finding themselves with no effective way to guard against impaired medical marijuana users and to protect not only that employee, but also those working with them.
In Rhode Island, a Superior Court Judge recently ruled on summary judgment that an employer violated the state’s medical marijuana statute when they refused to hire an applicant based on her use of medical marijuana. Callaghan v. Darlington Fabrics, C.A. No. P.C. 2014-5680 (May 23, 2017). The applicant disclosed to her prospective employer, Darlington, when she was applying for an internship that she was a medical marijuana cardholder and current user. She said she would likely fail the required drug test but would not use the substance on property. Darlington chose not to offer employment, stating that passing the drug test is a mandatory condition of employment since they have a drug-free workplace. The applicant sued under the Hawkins-Slater Act (Rhode Island Medical Marijuana Law) and the Rhode Island Civil Rights Act (RICRA).
The judge found that Darlington’s refusal to hire violated the Hawkin-Slater Act’s prohibition against refusing to “employ . . . a person solely for his or her status as a cardholder.” This finding differed from other recent opinions in which courts have rejected claims that refusing to hire a medical marijuana user constitutes disability discrimination. The judge rejected Darlington’s claim that RICRA excuses an employer from having to reasonably accommodate an applicant currently engaged in the illegal use of drugs as defined by federal law, and that they are not required to accommodate the use of medical marijuana among workers.
Other judges may interpret this situation differently and there is a chance that the Supreme Court of Rhode Island could overrule this decision. In the meantime, Rhode Island employers need to be aware of potential legal issues that can arise when dealing with applicants and employees using medical marijuana.
The Massachusetts Supreme Judicial Court recently heard oral arguments in Barbuto v. Advantage Sales & Marketing LLC et all, a case that questions an employer’s obligation to make accommodations for an employee’s off-site use of marijuana for medical purposes under the Massachusetts Anti-Discrimination and Medical Marijuana statutes.
The employee in the case started a new job and explained her use of marijuana in treatment of Crohn’s Disease to her new employer when asked to submit to a drug test. She was terminated the following day after failing the test. In making its decision, the employer reasoned that they follow federal law under which marijuana, for any use, is illegal, rather than state law.
The employee then sued alleging violations of the Massachusetts Anti-Discrimination law and the state Medical Marijuana law, as well as alleging claims of invasion of privacy and violation of public policy. The trial court dismissed all claims, other than her invasion of privacy claim and the employee appealed.
The employee argued that she “should not be faced with the cruel choice of treating her disability or earning a livelihood.” The Massachusetts Commission Against Discrimination (MCAD) also filed a brief arguing that the Medical Marijuana statute is meant to be liberally construed in order to promote equal opportunities in employment. This could have an impact on the outcome, as the court has traditionally given a significant amount of weight to the opinions of the MCAD.
On the other hand, the employer in the case argues that they should be able to take steps, including termination, to ensure a drug-free workplace, especially since, under federal law, marijuana for any use is against the law.
The current law in Massachusetts, while specifically not requiring employers to accommodate for on-site use of marijuana for medical purposes, is silent as to an employee’s off-site use of the drug. As such, the decision in this case should clarify an employer’s obligation, if any, moving forward in these circumstances. A decision is expected in the coming months. For additional information, download the parties’ briefs.
The coming months should reveal whether these cases in Rhode Island and Massachusetts courts will impact employers rights to a drug-free workplace and whether other states will follow. In the interim, employers should review all of their policies and procedures with regard to drug testing, hiring and termination. They should also keep informed of any additional rulings and cases on this matter. One thing is certain – the issue of medical marijuana in the workplace is here to stay.
When it comes to background screening, drug testing and employment verification, human resource professionals and employment attorneys must keep pace with ever-changing rules, regulations, laws and more. What are the trends facing the industry for 2016, and what will have the greatest impact on the practice of human resources and employment law?
Here are Hire Image’s top 10 predictions for what’s still “hot” from last year and why, and what’s coming down the pike that demands attention and focus for 2016:
- “Ban the Box” initiatives will turn into “Fair Chance” policies
“Ban the Box” intends to create a situation where employers are required to wait until later in the hiring process before asking about an applicant’s criminal history. By removing the question about conviction history from the application, employers are unable to eliminate an applicant simply based on his or her answer and would be more likely to base the hiring decision on the applicant’s qualifications. As the movement has grown, so have its goals and requirements. Rather than simply eliminating the criminal conviction checkbox, many of the laws now go further and require that an employer wait until after a conditional offer of employment to inquire about criminal history, limit the type or age of conviction records they consider, as well as conduct an individualized assessment of the applicant’s criminal past before choosing to rescind that offer. To date, seven states and the District of Columbia have implemented laws that impact private employers, and several major cities and counties have also taken up the cause within their own jurisdictions. San Francisco and New York City have adopted more comprehensive Fair Chance policies which proponents claim support a broader agenda of community economic development, criminal justice reform and civil rights protection. New “Ban the Box” laws introduced in 2016 will all likely include Fair Chance components. It is also expected that many of the current laws will be updated to incorporate Fair Chance components, as Philadelphia has chosen to do. Employers will need to understand and comply with not only the requirements under the Fair Credit Reporting Act (FCRA) when it comes to background checks, but also the added requirements of those laws in the states, counties, or cities in which they do business.
Click here for a list of all current “Ban the Box” laws.