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 al, 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 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.