Medical marijuana use opens up a potential quandary for employers

By John Sammon | Aug 24, 2017

BOSTON (Legal Newsline) – A recent Massachusetts case in which a woman sued her employer after being terminated for the use of marijuana for which she was legally prescribed represents the opening of a Pandora’s Box for employers.

The questions are whether employers should make a provision for the medical use of marijuana that is legal in many states even though the drug, according to the federal government, is still illegal, and if they can guarantee employees aren't abusing it. 

Mark Neuberger, a Miami attorney with the law firm of Foley & Lardner, has followed closely the issue of marijuana use and the workplace. He advises businesses on its ramifications and called the issue vague, unclear and bound to collide with competing interests.

“There is a huge dichotomy here,” Neuberger told Legal Newsline.

Currently 32 states and the District of Columbia have legalized at least some use of marijuana for medical conditions. Some states allow recreational use, and some allow only strains of the drug low in THC. Neuberger called the hodgepodge of differing state laws a patchwork quilt of differing interpretations.

The recent case of Christina Barbuto in the Massachusetts Supreme Court has further clarified the potential pitfalls for employers who have employees legally prescribed to use the drug. Barbuto accepted a job offer with a company that required her to take a pre-employment drug test. She told the company she suffered from Crohn’s disease and had been prescribed the use of marijuana to treat it.

After starting employment, she was then told she had tested positive for marijuana use and under company rules was terminated.

Barbuto sued under the state’s anti-discrimination laws for the company’s alleged failure to accommodate her legal treatment for her disability. Company officials argued that because marijuana use was illegal under federal law, the company did not have to make an accommodation.

A trial court dismissed Barbuto’s suit, but she appealed to the Massachusetts Supreme Judicial Court, which reversed the trial court decision, stating that at the very least the company should have allowed Barbuto to demonstrate that her marijuana use could be accommodated. 

The high court said an “interactive process” fact-finding communication should have taken place between the plaintiff and the defendants.

Barbuto will now go back to the trial court to prove her marijuana use can be accommodated by the employer. 

Neuberger said the bewildering array of different state laws regarding marijuana as it pertains to employers needs to be addressed and clarified. For example, Rhode Island has an anti-retribution law already in place for employers along with 10 other states, while neighboring Massachusetts does not.

“The federal government won’t fund research, and there is no science on this, and the drug is still illegal under federal law,” he said. “My advice to employers is to have them determine if they have a legitimate reason to accommodate marijuana use by employees who are off-duty.”

Neuberger further advised that if a company could not justify prohibiting off-duty marijuana use for medically prescribed conditions, it should consider revising its policies.

On the other hand of particularly importance is the status of those professions where impairment because of a drug could prove catastrophic.

“How do you know if a person who says they are taking marijuana the night before is not taking it just before they come to work?" Neuberger asked. “You can't test every day for drug use. You don’t want, for example, a hospital surgeon coming to work high.”            

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