Since Massachusetts voters overwhelmingly approved a ballot measure legalizing medical marijuana, employers have wondered whether the new law would force them to change their drug testing practices. Currently, Massachusetts employers are allowed to conduct post-offer pre-employment drug tests on job applicants and lawfully refuse employment to those who test positive for marijuana use. But, if marijuana is now legal for medical purposes, can employers lawfully discriminate against employees who smoke marijuana to treat medical conditions?
The answer is certainly not clear from the language of the law. The law only references employment by stating that employers do not have to accommodate the use of marijuana in the workplace. But the law does not say whether employers must accommodate the off-duty use of marijuana, as they normally would other prescription medications.
Now, it appears employers may soon have some guidance on the issue. As reported in the most recent issue of Massachusetts Lawyers Weekly, a lawsuit has been filed in Suffolk Superior Court that will test an employer’s right to deny employment to medical marijuana users. In the suit, a women who smokes marijuana off-duty to treat her Crohn’s disease claims that her employer violated Massachusetts anti-discrimination law when it fired her on her first day of work for testing positive for marijuana. The woman claims she only smokes marijuana in the evenings. Because her use would not impair her work in any way, she claims, her employer was required to accommodate her off-duty use of marijuana under Chapter 151B.
While similar discrimination claims in other states that have legalized medical marijuana have failed, the situation in Massachusetts is unique in several ways. First, the Massachusetts medical marijuana law contains language that protects lawful users of medical marijuana. The law provides that such users “shall not be penalized under Massachusetts law in any matter, or denied any right or privilege, for such actions.” This language was clearly intended to protect medical marijuana users from some level of discrimination. While employment is not a right, a Massachusetts court could rule that employment is a privilege falling within the scope of that broad language.
Second, recent decisions coming from Massachusetts courts have been extremely pro-employee. Taking the lead from the Massachusetts Commission against Discrimination, Massachusetts courts have broadly interpreted Chapter 151B’s requirement that employers reasonably accommodate disabled job applicants, requiring that employers make significant efforts to allow applicants to perform the essential functions of them job. Tolerating an employee’s use of a controlled substance – the possession of which would be illegal but for a doctor’s prescription – is something a Massachusetts court would certainly expect an employer to do. After all, employers certainly could not refuse to hire an applicant who takes painkillers or prescription sleep aids when off-duty to treat his or her medical condition when the use would have no impact on the applicant’s ability to do the job safely and effectively. If an applicant’s off-duty use of medical marijuana would not interfere with the applicant’s ability to do the job or pose any risks to the health and safety of the applicant, other employees or the public, a Massachusetts court is unlikely to allow an employer to reject the applicant out of hand.
Nevertheless, medical marijuana users still face an uphill battle. Employees may say that they are smoking marijuana well before they report to work, but employers have no way to monitor their employees’ off-duty marijuana use. Also, there are some jobs where employing a person who could be impaired by off-duty marijuana use would create serious safety risks. Even a pro-employee Massachusetts court could not expect an employer to tolerate such a risk simply because medical marijuana is now legal. Moreover, the possession and use of marijuana is still illegal under federal law. Putting aside the possible preemption issues, if Massachusetts law allows employers to fire at-will employees at any time for any reason, shouldn’t employers be able to say that they do not want to employ someone whose conduct violates federal law?
It will be a while before employers have clear guidance on this issue. Hopefully, we’ll have an answer by November 2016, when an initiative to legalize the recreational use of marijuana in Massachusetts is expected to be on the ballot for voter approval.