In 2012, Massachusetts passed An Act for the Humanitarian Medical Use of Marijuana (MMA), which allows qualified individuals to use medical marijuana. Its passage has resulted in some confusion. On one hand, the MMA protects disabled individuals who use medical marijuana. On the other, the Controlled Substances Act (CSA) deems marijuana illegal. Many employers want to comply with employment laws and reasonably accommodate disabilities. At the same time, many employers do not want to condone criminal behavior or employ individuals who are impaired while working. This article explores the relevant landscape by: (1) discussing the context in which federal and state medical marijuana law has developed; (2) identifying employment-related questions that Massachusetts case law has answered; and (3) underlining important but unanswered questions about medical marijuana in the employment context.
A brief history of relevant law
Massachusetts is one of 29 states with comprehensive legislation permitting medical marijuana use. The MMA removes punishment under state law for qualified patients who use medical marijuana. 2012 Mass. Acts ch. 369. The MMA does not require “accommodation of any on-site medical use of marijuana in any place of employment.” Id
. at § 7(D). The MMA does not state expressly that an employer cannot take adverse action against an employee or applicant who uses medical marijuana, and it does not expressly allow an aggrieved employee or applicant to bring a civil action against an employer. However, the Massachusetts Fair Employment Practices Law (Chapter 151B) prohibits disability discrimination and requires employers to provide reasonable employment accommodations to qualified individuals with disabilities. M.G.L. c 151B, § 4(16). This dichotomy begs the question of whether an employer must tolerate an employee’s on-the-job medical marijuana use as a reasonable accommodation.
Massachusetts law regarding marijuana is developing, but not in a vacuum. There are relevant federal laws in play. Foremost is the CSA, which since 1970 has made marijuana illegal. 21 U.S.C. § 812(c). Marijuana, like heroin, is a Schedule I substance under the CSA, meaning it has a high potential for abuse, no accepted medical use, and a lack of accepted safety standards. 21 U.S.C. § 812(b)(1), 812(c).
The Americans with Disabilities Act (ADA) is also in play. 42 U.S.C. §§ 12101 et seq. Like Chapter 151B, the ADA prohibits disability discrimination and requires reasonable employment accommodations for individuals with disabilities. 42 U.S.C. § 12112(a)-(b). The ADA does not consider individuals who use illegal drugs to be qualified disabled individuals entitled to reasonable accommodation. 42 U.S.C. § 12114(a). Given marijuana’s illegality under federal law, current case law indicates that the ADA does not require employers to accommodate employee disabilities by allowing marijuana use. James v. City of Costa Mesa
, 700 F.3d 394, 397-98 (9th Cir. 2012).
The Drug Free Workplace Act (DFWA) is also relevant. 41 U.S.C. §§ 8101 et seq. The DFWA requires certain federal contractors and federal grantees to agree to provide drug-free workplaces as a condition of receiving a federal contract or grant. 41 U.S.C. §§ 8102-8103. Covered employers must issue a policy to employees advising them that possession and use of controlled substances is prohibited in the workplace, and noting the consequences for violating the policy. Id
While the CSA’s treatment of marijuana has not changed, federal enforcement policy has. Between 2009 and 2013, the Department of Justice (DOJ) issued guidance to federal prosecutors around the country not to aggressively pursue federal marijuana violations in states where marijuana is legal. In January 2018, however, the new attorney general, Jeff Sessions, issued a memorandum rescinding the DOJ’s prior guidance. In that memorandum, Sessions told U.S. attorneys across the country that they should use their discretion when making decisions about the prosecution of marijuana-related crimes and “weigh all relevant considerations, including federal law enforcement priorities set by the attorney general, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.” Subsequently, the U.S. Attorney for Massachusetts, Andrew Lelling, said that his office will focus on bulk cultivation and trafficking, and those who use the federal banking system illegally. But Lelling later said that he could not “provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”
Despite the DOJ’s shift, a federal protection of state medical marijuana laws remains in place. In December 2014, as part of an omnibus spending bill, Congress passed what is known as the Rohrabacher-Farr amendment. This provision prohibits the use of federal funds to prevent states from implementing their own laws regarding medical marijuana. Congress has reauthorized the amendment in subsequent spending bills. In so doing, Congress inhibited federal prosecution of marijuana-related offenses in states with medical marijuana laws.
In the employment context, the rubber hits the road when an employee’s or applicant’s marijuana use is revealed. In general, state medical marijuana laws, like the MMA, attempt to treat marijuana like other medications for treating various disabilities. And state laws prohibiting disability discrimination, like Chapter 151B, require employers to reasonably accommodate qualified individuals with disabilities. Medications are often used as a form of accommodation to treat the symptoms of disabilities, but marijuana stands alone as a “medication.” Unlike other medications, doctors cannot issue prescriptions for marijuana that can be picked up at a local pharmacy. That is because marijuana is a Schedule I substance under the CSA. Doctors instead must recommend that patients use medical marijuana, which patients then purchase at dispensaries.
Courts weighed in, and an early consensus formed
An early consensus formed when courts in other states addressed employee versus employer rights regarding medical marijuana. Courts ruled consistently that employers were not required to tolerate employee use of medical marijuana. They did so under different but related theories. Some courts, such as the California Supreme Court, held that their states’ medical marijuana laws did not require employers to accommodate employee use of medical marijuana under state anti-discrimination law, relying in part on marijuana’s illegality under the CSA. See Ross v. RagingWire Telecomms
., 42 Cal. 4th 920, 926-28 (2008); Garcia v. Tractor Supply Co
., 154 F. Supp. 3d 1225, 1228 (D.N.M. 2016). Other courts, such as the Oregon Supreme Court, held that the CSA preempted their states’ medical marijuana laws because such state laws stand as obstacles to the CSA’s goals, namely conquering drug abuse and controlling the traffic of drugs. See Emerald Steel Fabricators, Inc. v. Bureau of Labor and Indus
., 348 Or. 159, 186 (2010); Carlson v. Charter Commc’ns
, No. CV 16-86-H-SEH, 2017 U.S. Dist. LEXIS 128019, at *5-6 (D. Mont. Aug. 11, 2017). These courts held that medical marijuana use is not a reasonable accommodation. See Emerald Steel, supra
SJC reached a different result
In 2017, the Massachusetts Supreme Judicial Court (SJC) bucked the trend. In Barbuto v. Advantage Sales and Mktg., LLC,
the SJC held that an employer could be liable for disability discrimination under Chapter 151B by declining to accommodate an employee’s off-duty use of medical marijuana.
, a job applicant who suffered from Crohn’s disease and irritable bowel syndrome accepted a position with the defendant. She submitted to a pre-employment drug test and notified the defendant that she would likely test positive because she used medical marijuana to manage the symptoms of her conditions. After she tested positive for marijuana, the employer terminated her employment.
The SJC held that a qualifying individual’s off-duty use of medical marijuana is not per se unreasonable as an accommodation under Chapter 151B. Id
. at 464-65. The SJC reasoned that the MMA makes a qualifying patient’s medical marijuana use “as lawful as the use and possession of any other prescribed medication.” Id
. at 464. The SJC also reasoned that permitting an employee to use medical marijuana did not require the employer to commit a crime, because the “only person at risk of federal criminal prosecution for [the employee’s] possession of medical marijuana is the employee.” Id
. at 465. The SJC further concluded that, even if accommodating medical marijuana was facially unreasonable, “the employer here still owed the plaintiff an obligation under [Chapter 151B], before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use.” Id. at 466.
The SJC rejected the defendant’s attempt to rely on its neutral drug testing policy. The SJC reasoned that, “Where a handicapped employee needs medication to alleviate or manage the medical condition that renders her handicapped, and the employer fires her because company policy prohibits the use of this medication, the law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap.” Id
The SJC limited its ruling, however. It held that employers have no obligation to accommodate on-the-job marijuana use. Id
. at 464-65. It also noted that the defendant could potentially defeat the claim by proving that the plaintiff’s use of medical marijuana would impose an undue hardship. Id
. at 467. As examples, the SJC offered that an employer might be able to prove that medical marijuana use would impair an employee’s performance, create an “unacceptably significant” safety risk, or violate the employer’s “contractual or statutory obligations.” Id
. at 467-68. In addition, the SJC concluded that the MMA does not create a private right of action or give rise to a claim of wrongful termination in violation of public policy. Id
. at 470.
, the SJC evaluated a motion to dismiss. It did not make an ultimate liability determination. In fact, there are no published Massachusetts decisions reflecting that an employer was or was not liable for failing to accommodate an employee’s or applicant’s use of medical marijuana. Under what circumstances an employee can prevail on such a claim or an employer can defeat such a claim remains to be seen.
The SJC also did not decide whether the CSA preempts the MMA. The U.S. Constitution states that, “the Law of the Unites States … shall be the supreme Law of the Land …” This provision, known as the Supremacy Clause, means that federal law may preempt state law. When Congress passed the CSA, it did not expressly preempt all state laws regarding controlled substances. Instead, the CSA states that no preemption results “unless there is a positive conflict between” the CSA and the state law “so that the two cannot consistently stand together.” 21 U.S.C. § 903. There are two general circumstances in which preemption will result from a conflict between a federal and a state law: (1) where simultaneous compliance with a federal law and a state law is impossible; and (2) where a state law is an obstacle to the objectives of a federal law. Freightliner Corp. v. Myrick
, 514 U.S. 280, 287 (1995). Courts that have addressed the CSA’s preemptive impact on state medical marijuana law seem to focus on whether such laws are an obstacle to the CSA’s objectives.
As indicated above, some courts have rejected plaintiffs’ marijuana-related claims based on federal preemption. See Emerald Steel, supra; Carlson, supra
. More recently, however, other courts have reached the opposite conclusion, holding that the CSA does not preempt state medical marijuana law and an employer may have to accommodate employee use of medical marijuana off-duty. Noffsinger v. SSC Niantic Operating Co
., 273 F. Supp. 3d 326 (D. Conn. 2017); Callaghan v. Darlington Fabrics Corp
., No. PC-2014-5680, 2017 WL 2321181, at *13-15 (R.I. Super. May 23, 2017). How the SJC would answer this question remains to be seen.
At bottom, this area of the law is developing. While the SJC has answered some important questions about employer and employee rights and obligations when it comes to medical marijuana use, others remain unanswered. As the law develops, interested parties should proceed with caution.