Well, we knew this day would come. Despite the fact that marijuana remains a Schedule I Controlled Substance under Federal law (defined as a drug or other substance that has no currently accepted medical use in treatment in the United States), the Massachusetts Supreme Judicial Court just held that marijuana is per se a reasonable accommodation for disability. In other words, employers in Massachusetts that test for marijuana need to immediately amend their policies and procedures to allow for the possibility of accommodating an applicant or employee’s medical marijuana use. Deep breaths.
This is going to create a giant mess, you say. You are not wrong, but at least the SJC outlined places where employers can demonstrate undue burden when they get sued.
But it does not necessarily mean that the employee will prevail in proving handicap discrimination…For instance, an employer might prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an “unacceptably significant” safety risk to the public, the employee, or her fellow employees. …Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety‐sensitive employee subject to drug testing under the department’s drug testing regulations from using marijuana…In addition, we recognize that Federal government contractors and the recipients of Federal grants are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to make “a good faith effort . . . to maintain a drug-free workplace,” and prohibits any employee from using a controlled substance in the workplace.
As I said, deep breaths. All is not lost, and compliance is possible.
As a reminder, both Massachusetts and federal law require employers to engage in an interactive dialogue with qualified disabled employees who request reasonable accommodation. Indeed, it was Advantage Sales and Marketing’s refusal to engage with Christina Barbuto, rather than their drug testing practices that the Supreme Judicial Court appears to take issue with. MCAD Guidelines, § VII.C advise that once a handicapped employee notifies the employer of need for accommodation to perform essential functions of job, “the employer should initiate an informal interactive process” with the employee to “identify the precise limitation resulting from the handicap and potential reasonable accommodations that could overcome those limitations”). The SJC makes clear that marijuana use may cause undue hardship for some employers, but employers cannot make that determination unless or until they engage with the employee to determine whether a qualifying disability exists, and whether factual circumstances surrounding the employee’s request would impose an undue hardship on the employer.
There are a few things to keep in mind:
- This decision does not address recreational marijuana use. Employers do not have to allow employees to use marijuana at work, and can continue to test for marijuana use and terminate employees who fail the test.
- This decision does not find that Massachusetts law has created a protected class for medical or recreational marijuana users.
- This decision will not limit employers ability to regulate marijuana use in the workplace. Employers do not have to allow employees to use marijuana in the workplace.
So what steps should an employer take if an employee notifies them that the employee is a medical marijuana user?
Engage with the employee to determine the nature of the employee’s impairment, the nature of the accommodation the employee is requesting (is the employee asking to use marijuana at work, or merely notifying the employer that he or she will fail a drug test?), and whether there are alternative accommodations that will allow the employee to perform the essential functions of the job. This process should be clearly documented, and in many cases will include the employee’s healthcare provider. Depending on the employee’s requested use or the nature of the employee’s position, the request to use marijuana may not be reasonable or it may impose an undue hardship on the employer. However, the employer cannot come to this determination unless or until they engage with the employee.
And, it wouldn’t hurt to update your drug use and drug testing policies.