News
July 31, 2017
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© 2017 Brownstein Hyatt Farber Schreck, LLP
States Diverge on Employment Law Protections for Medical Marijuana Users
Several courts have held that employees are not protected from termination or other adverse employment action
for medical marijuana use, even in cases where they hold a medical marijuana card under state law, when they
test positive in violation of their employer’s drug policies.i Generally, those courts hold that, because marijuana use
remains illegal under federal law, reliance upon state law permitting marijuana use does not protect the employee
from adverse action.
But the tide may be turning. In a recent opinion handed down by the Massachusetts Supreme Court, Barbuto v.
Advantage Sales and Marketing, LLC,ii the court held that employees may sue for disability discrimination when
the employee constitutes a “qualified handicapped person,” and suffers an adverse employment action even
though they can perform the essential functions of their position with some form of accommodation. The key,
according to the Barbuto court, is whether the accommodation (here, the use of medical marijuana) is facially
reasonable.iii In other words, employers may be required to permit medical marijuana use as permitted by state law
as a reasonable accommodation.iv Rejecting the rationale of the cases cited above (i.e., “it’s illegal under federal
law, so employers need not permit it”), the Barbuto court reasoned: “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 only person at risk of federal criminal prosecution for her possession of medical marijuana is the employee. An
employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting
an employee to continue his or her off-site use.”v While the court in Barbuto gave the plaintiff the green light to
proceed with her disability discrimination claims, it rejected her claim that the Massachusetts medical marijuana
statute created a private right of action for wrongful termination, and it did not opine on the merits of her particular
case.
So what was the court’s basis for departing from the general rule that employers can terminate employees who
test positive for marijuana? The answer lies, at least in part, in the language of the 2012 Massachusetts voter-
approved measure legalizing medical marijuana. That measure provides that medical marijuana patients may not
be denied “any right or privilege” on the basis of their use of medical marijuana. Further, the court reasoned, in
Massachusetts, disabled employees have a statutory “right or privilege” to reasonable accommodation. Therefore,
employers cannot deny reasonable accommodation to employees based solely on their use of medical marijuana,
and must participate in the interactive process when a physician concludes that “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 . . . .”vi
Some states, such as Arkansas, Connecticut, Delaware, Nevada, Maine, Minnesota, New York, Pennsylvania and
Rhode Island, have included similar employee protections in their marijuana laws. Conversely, several other states
have specified that employees are granted no employment-related protections, and many others are silent on the
issue.vii
In Maine, which has incorporated both employee protections and employer protections into its medical and
recreational marijuana laws, the state Department of Labor has recently taken the position that employers should
stop testing employees and applicants for marijuana altogether.viii Maine’s Marijuana Legalization Act specifies that
employers are not required to accommodate the use or possession of marijuana in the workplace and are
permitted to enact workplace policies restricting the use of marijuana by employees and punish those employees
who are under the influence of marijuana in the workplace. However, the same Act also prohibits employers’
refusal to employ individuals solely on the basis that the individual consumes marijuana outside the employer’s
property.ix The Barbuto opinion may have influenced the Department of Labor’s stance; the language relied upon
by the Barbuto court is very similar to that found in Maine’s laws. The Maine Department of Labor has advised
employers not to take adverse action against employees for failed drug tests, even if the employer has a state-
sanctioned drug policy in place, until the courts clarify employers’ rights and responsibilities.
