Medical Marijuana – Employment Discrimination, Undue Hardship & Public Safety

 Estimated Read Time: 4 Minutes

Massachusetts Supreme Court Case

In July 2017, The Massachusetts Supreme Court ruled that employees in the Commonwealth of Massachusetts who have a legal medical marijuana card, and have been terminated from employment based solely on the use of marijuana, can sue their former employers on the grounds of disability discrimination. The decision is divergent from previous court rulings in other states where employers have been found to have no duty to accommodate an employee’s use of medical marijuana. So, where does that leave us? It is crucial that employers stay up-to-date on the most recent court rulings, and verify that company policies mirror the evolving set of state laws and litigation.

Key Takeaways

While your company may not be in Massachusetts, the actions of their Supreme Court are worth considering as other states may look to their ruling when contemplating policy.  Here are the few key takeaways from the Massachusetts Supreme Court ruling for employers:

• Employers cannot terminate employment based solely on the use of medical marijuana.
• To be on the right side of the law, employers will now need to prove that an undue hardship is placed on their businesses, or a public safety risk is created, by an employee’s use of medical marijuana. As an example of this, the Supreme Court stated, “an employer must prove that the continued use of medical marijuana would impair the employee’s performance of their work or pose an ‘unacceptably significant’ safety risk to the public, the employee, or their fellow employees.”
• Contractual or statutory obligations, such as Drug Free Workplace obligations for government contracts, may be grounds for an undue hardship.
• Other state courts might follow the lead of the Massachusetts Supreme Court Case ruling and find that employees are entitled to reasonable accommodations under state disability discrimination laws.

You may be asking yourself, “Isn’t marijuana still illegal at the federal level? If so, how are state laws able to supersede?” There has been a “tug of war” between the federal laws and state laws concerning medical marijuana for years. The U.S. Federal Government makes it a crime to cultivate, possess, or use marijuana for any purpose. While some states allow the use of marijuana for medical and recreational reasons. In general, where federal laws and state laws collide, the federal law will win. It is accurate that users of state-authorized medical marijuana may still be arrested and/or prosecuted. But why isn’t federal prosecution happening?

History Lesson

A bit of history on the subject, when President Barak Obama took office in 2009, the U.S. Federal Government shifted its attention to larger drug trafficking issues instead of day-to-day federal prosecution of individual offenders. In 2014, the U.S. Congress placed into law the prohibition of the U.S. Department of Justice interfering in the implementation of state marijuana laws. Then in August 2016, the U.S. Court of Appeals for The Ninth Circuit, ruled that no funding should be permitted in federal courts for the prosecution of any person obeying a state’s medical marijuana laws. The combination of the actions in 2009, 2014, and 2016 have open the flood gates to states constructing their own sets of marijuana laws and enforcement. However, states would be wise to understand that the U.S. Congress could appropriate funds and resume federal prosecution whenever it so chooses.

Closing Thoughts

Outside of government, marijuana use in any form, for medical purpose or recreational, is still intensely debated in the United States. With 28+ states having legalized medical marijuana and 9+ states legalizing some form of recreational use, the complex matrix of laws can be overwhelming to an employer who is simply trying to stay compliant to all things related to employment law. It is important for employers to check the specific laws within the regions they operate before constructing suitable policies and procedures. In addition, it is highly recommended that employers speak with a qualified consulting firm, and/or law firm, who might help guide the employer to better understand its rights and responsibilities concerning marijuana use and possession in each state in which the company operates.

Validity Screening Solutions is a third-party administrator of drug and alcohol testing services as well as a Consumer Reporting Agency for background screening services. To learn more about Validity, check out our website here, and if you have any questions, please email me at sburroughs@validityscreening.com.

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Sources

https://www.natlawreview.com/article/massachusetts-s-highest-court-rules-employee-fired-medical-marijuana-use-can-hold

http://criminal.findlaw.com/criminal-charges/medical-marijuana-an-overview.html

http://time.com/4455098/medical-marijuana-justice-department-courts/