It’s Reasonable to Employ Marijuana Users

By Bill Wright

A requested accommodation for a disability is not unreasonable as a matter of law just because it is illegal under federal law, says the Massachusetts Supreme Judicial Court in a recent case.  As applied there, the result is that an employer had to engage in an interactive process with the employee to determine whether an alternative medication would have been just as effective as medical marijuana for her disability.

The Massachusetts medical marijuana law provides that medical marijuana users may not be denied “any right or privilege” because of their use of the drug and that employers are not required to accommodate “on-site medical use of marijuana.” In this case, the employer discharged an employee when she tested positive for marijuana.  The facts alleged are that she used the drug only off work and as prescribed by her physician.  When the employee brought a disability discrimination claim (among others), the employer moved to dismiss, arguing, in part, that permitting an employee to commit a federal crime is per se unreasonable.  The Court disagreed.  After all, the state and citizens of Massachusetts (and “nearly ninety per cent of the States”) have decided that medical use of marijuana is reasonable; who is the federal government to disagree?  In addition, only the employee risked federal prosecution.  The underlying issue here is that the employer did not engage in the interactive process with the employee to determine whether some other medication might have been more effective.

Each of the state laws legalizing marijuana has its own quirks when it comes to the employment relationship.  Massachusetts’ version guaranteed broad protections and left open the possibility of a reasonable accommodation for off-site use.  Compare this to your state’s law.