Employer Marijuana Policies Under Increased Scrutiny

The explosion of medical and recreational marijuana laws coupled with an overall relaxed societal attitude towards the drug has left many employers wondering if they should make changes to their drug testing and workplace policies.

Over the last several years, most cases – including in states such as Colorado, New Mexico and Washington – have sided on the employer’s side allowing them to maintain a drug-free workplace and refuse employment to (or terminate) those that test positive for marijuana.

However, two court cases call into question whether employers should assume that the stance that federal law that still classifies marijuana as illegal will always trump state-based requirements.

Connecticut

In a September 2018 decision, the U.S. District Court for the District of Connecticut analyzed an employment discrimination claim as it relates to an individual’s use of medical marijuana. Connecticut’s medical marijuana law prohibits employers from refusing to hire or from terminating or otherwise penalizing an individual who is a qualifying medical marijuana patient, but still allows employers to prohibit the use of intoxicating substances during work hours.

In this case, the plaintiff accepted a job offer but informed the employer that she was a qualified medical marijuana user who ingested marijuana in the evenings to treat her post-traumatic stress disorder. Following a positive drug test, her employment offer was rescinded.

The court found that the employer’s actions violated the state’s medical marijuana law.

Massachusetts

The Massachusetts Supreme Judicial Court issued an opinion in 2017 that surprised many employers. In its unanimous ruling, the court found medical marijuana users can assert claims for discrimination under the state’s Fair Employment Practices Act. This case arose following an employer’s termination of an individual that tested positive for marijuana. Prior to taking the drug test, the individual informed the employer that she used medical marijuana to treat the symptoms of Crohn’s disease.

Notably, the court determined the employer must engage in an interactive process to determine if a reasonable accommodation could be made (much as they would for another type of disability).

Employers are encouraged to review any applicable state laws regarding recreational or medical marijuana use in conjunction with their hiring and drug testing policies.