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Employment Discrimination Based on Medical Marijuana Use


A relatively novel issue arose in a recent state court case in Massachusetts involves allegations of employment discrimination based on medical marijuana use and disability accommodation. After being terminated for a positive drug test, an employee suffering from Crohn’s disease filed suit in state court alleging disability discrimination and violation of Massachusetts’ Medical Marijuana Act.

Facts surrounding the termination

An employee suffering from Crohn’s disease, a debilitating gastrointestinal condition for which she had been prescribed medical marijuana under Massachusetts law, was offered a position with a sales and marketing firm. She was required to take a drug test and immediately informed her supervisor that she would test positive for marijuana. The employee also explained that it was not necessary for her to use marijuana everyday and she would not use it before or during work hours. Her supervisor represented to her marijuana use under those circumstances “would not be an issue.”

Nevertheless, when the employee’s drug test came back positive for marijuana, she was terminated by the company’s Human Resources director. The HR director’s justification was that the company was required to follow federal law, not state law. In other words, despite the fact that medical marijuana has been legalized under Massachusetts law, possession of medical marijuana still violates Federal law.

The applicable laws governing marijuana possession and usage

The Massachusetts law authorizes medicinal marijuana use and provides that individuals meeting the requirements of the statute shall not be penalized or denied any right or privilege for such use. However, marijuana is still classified as a Schedule 1 controlled substance and, therefore, illegal under federal law. What that means is, despite being protected under Massachusetts law, an individual may still be subject to Federal criminal prosecution for possessing the prescribed marijuana.

Employee’s disability accommodation claim

The employee brought a claim for disability discrimination under Massachusetts law, as she is a “qualified handicapped person” incapable of performing the essential functions of her job without a reasonable accommodation. That accommodation would have been a waiver of the policy of terminating employees who test positive for marijuana. Her employer argued that the requested accommodation was per se unreasonable because possession of even prescribed marijuana is illegal under Federal law. The Massachusetts court did not agree.

The requested accommodation was not per se unreasonable

Under Massachusetts law, where an alternative medication allowed by the employer’s drug policy would be less effective for the employee, an exception to an employer’s drug policy to allow marijuana use was a reasonable accommodation. Furthermore, the court found that simply because possession of medical marijuana is still a violation of Federal law that does not make it per se unreasonable as an accommodation. The reasoning is that the risk of Federal prosecution belongs to the employee, not the employer. In other

words, the employer would not be violating federal law by allowing the employee to use marijuana.

Disposition of the claims

While the court reversed the dismissal of her disability discrimination claims by the trial court, it found that there was no private cause of action under the state’s medical marijuana act and no separate cause of action for public policy wrongful termination. As a result, her termination claims under that statute were not allowed to proceed.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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