By Nathaniel M. Glasser and Anastasia A. Regne
Before the rise in acceptance of medical marijuana use, companies often strictly enforced zero tolerance drug policies, even if those policies effectively prohibited employees’ off-duty use of medical marijuana. The legal landscape, and public perception, has drastically changed over the last five to ten years. State statutes increasingly provide protections to employees who are lawful users of medical marijuana, some going so far as to require accommodation of medical marijuana use. Even where state or local law does not provide express protection for lawful off-duty use, recent court decisions have provided additional employment rights to lawful medical marijuana users.
While prior to 2017, court decisions indicated that employers could control off-duty conduct (at least when it came to cannabis), a sea of change occurred two years ago, with a number of courts interpreting state laws to provide at least some employment protection to the lawful off-duty use of medical marijuana.
The first such decision came in 2017, when the Rhode Island Superior Court concluded that Rhode Island’s medical marijuana law, the Hawkins-Skater Act, may require an employer to accommodate an employee’s off-duty medical marijuana use. In Callaghan v. Darlington Fabrics Corp., the plaintiff disclosed prior to hire to the employer that she had a medical marijuana card. Darlington told the plaintiff that marijuana use disqualified her for the role because the plaintiff could not comply with the company’s drug-free workplace policy. The Rhode Island Superior Court held that the language of the Hawkins-Skater Act, which states that nothing in the law requires “[a]n employer to accommodate the medical use of marijuana in any workplace,” suggests that employers are implicitly required to accommodate medical marijuana use outside the workplace. Although the court explained that employers are not required to provide accommodations that restrict jobs, modify work schedules, or even modify company drug or alcohol policies generally, it found that employers can regulate medical marijuana use by prohibiting workers from being under the influence at work, rather than completely refusing to hire medical marijuana users.
Less than two months later, the Massachusetts Supreme Judicial Court echoed the reasoning in Callaghan. In Barbuto v. Advantage Sales & Marketing, the plaintiff disclosed her status as the holder of a prescription for medical marijuana, as permitted by Massachusetts law. Upon the employer learning that a pre-employment drug test was positive for marijuana, the company terminated the plaintiff’s employment. On appeal, the Massachusetts Supreme Judicial Court refused to find the Massachusetts law was preempted by the CSA. Moreover, because the Massachusetts Medical Marijuana Act does not require “any accommodation of any on-site medical use of marijuana in any place of employment,” the court held that the company was obligated to engage the plaintiff in an interactive process about her at-home medical marijuana use before it was justified in terminating her employment.
In 2018, a Connecticut case also concluded that federal law did not preempt relevant state law. In Noffsinger v. SSC Niantic Operating Company, the federal court in Connecticut refused to find that a number of federal laws preempted the Connecticut Palliative Use of Marijuana Act (“PUMA”). Specifically, the court concluded that, while the federal Americans with Disabilities Act allows an employer to prohibit the use of illegal drugs “at the workplace,” nothing in the case involved the plaintiff using marijuana at the workplace, and PUMA expressly permits employers to prohibit the use of intoxicating substances “during work hours” only. Ultimately, the court found that the employer inappropriately rescinded a job offer to the plaintiff solely because she tested positive for cannabis.
The most recent case on the issue is a 2019 decision, Wild v. Carriage Funeral Holdings, Inc., where the plaintiff employee alleged that his employer, Carriage Funeral Holdings, failed to reasonably accommodate his disability (cancer), and unlawfully discharged him in violation of the New Jersey Law Against Discrimination (the “LAD”), because he used medical marijuana, as legally permitted by the state’s Compassionate Use of Medical Marijuana Act (“CUMMA”). The employer terminated the plaintiff employee after he tested positive for cannabis following an on-duty motor vehicle accident. On appeal, the New Jersey Appellate Division reversed the trial court’s ruling, holding that the fact that CUMMA did not “require” employers to accommodate an employee’s use of medical marijuana in the workplace did not affect the requirement under the LAD to reasonably accommodate an employee’s disability, which could include an employee’s off-duty and off-site use of medical cannabis. The New Jersey Supreme Court has taken up the case, and will review the issue of whether or not New Jersey employers have to accommodate medical marijuana use.
Since the Appellate Division’s decision, there has been a legislative twist – New Jersey amended CUMMA to prohibit employers from taking an adverse employment action against a current or prospective employee based upon the individual’s status as a “registered qualifying patient” of medical marijuana. The new version of CUMMA deleted the provision in the original legislation stating that nothing in the act imposed “an obligation on employers to accommodate an employee’s use of medical marijuana.”
The extent to which employers can regulate employees’ off-duty marijuana use continues to depend on the state in which the employee lives. Clearly, employers may prohibit all off-duty marijuana use in those states that have not legalized any form of marijuana. Conversely, in states like New York that expressly require accommodation, employers have limited ability to regulate off-duty use and must focus on whether employees are impaired at work. For those states that have legalized marijuana but do not provide express employment protections, as seen above the courts increasingly have been concerned with the use of the phrase “in the workplace” where the state statute expressly allows employers to prohibit lawful use. More and more courts are interpreting that phrase to implicitly require lawful, off-duty use of medical marijuana.
Despite the variety of outcomes in these cases, one thing is certain across all jurisdictions – employers are not required to accommodate use of medical marijuana while on duty, or in the workplace. In those cases, the issue often comes down to impairment at work. Detecting impairment is much more challenging than detecting marijuana through a drug test, because the level of tetrahydrocannabinol (THC) in the body may not reflect impairment or behavior effects. While companies are attempting to design breath-based tests to measure impairment, such tests have not yet been subject to rigorous scientific testing for validation.
Where off-duty use of medical marijuana is protected, and accommodation required, the employer’s ability to regulate off-duty use often comes down to the frequency and time of day of use. For example, an employer typically will have little say in an employee’s use of medical marijuana if the use occurs after work – such as, every day at 6:00 p.m. after working a 9-to-5 job. If, however, that same employee uses at 8:00 a.m. before work, almost ensuring on-site impairment, then it would not be a reasonable accommodation to require the employer to allow for such conduct.
When considering reasonable accommodations, employers should ask questions that are more likely to identify the circumstances that may cause an employee to be impaired at work – such as asking about frequency and timing of use. Employers also should train supervisors and management to detect impairment, and ensure that all anti-impairment policies are enforced uniformly throughout the workforce.
NATHANIEL M. GLASSER is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of employers in employee relations and human resources compliance, as well as litigating claims of harassment, discrimination, whistleblowing, and wage-hour violations. He also advises clients on novel issues of employee relations, including drug testing and accommodation questions in the wake of new recreational and medical marijuana (cannabis) laws, as well as the implementation of artificial intelligence and predictive (or people) analytics in the workplace. He can be reached at (202)-861-1863 or [email protected]
ANASTASIA A. REGNE* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She will be focusing her practice on employment litigation, labor-management relations, and employment training, practices, and procedures, including: drug testing and accommodation questions, particularly concerning the interaction with new marijuana (cannabis) legislation.
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