Illanit Fischler. Illanit Fischler.

As more states legalize marijuana for medical use, employers are asking themselves whether they need to hire or continue to employ those who have a prescription for marijuana and test positive for marijuana. Courts in at least six states where medical marijuana is legal have issued decisions upholding an employer’s right to enforce their zero tolerance policies. However, in 2017, courts in Rhode Island, Massachusetts and Connecticut ruled that employers may not discriminate against employees for using medical marijuana. These decisions may be the start of a trend among courts that recognize causes of action for employees who use medical marijuana.

Rhode Island

In Callaghan v. Darlington Fabrics, No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017), the Rhode Island Superior Court held that an employer could not refuse to hire a medical marijuana cardholder, even if the employee would not pass the employer’s mandatory pre-employment drug test. When Christine Callaghan applied for a paid internship, she disclosed that she had a medical marijuana prescription, and that she would not pass the employer’s drug test. The employer rescinded the job offer because Callaghan admitted that she could not comply with the company’s drug-free workplace policy.

The court held that the employer’s refusal to hire Callaghan violated Rhode Island’s medical marijuana statute, which explicitly prohibits employers from refusing to employ a person “solely because of his status as a [medical marijuana] cardholder.” The court also held that Callaghan’s disability discrimination claim survived because she could demonstrate discrimination against a class of disabled people—“those people with disabilities best treated by medical marijuana.” The employer will be appealing to the Rhode Island Supreme Court.

Massachusetts

In Barbuto v. Advantage Sales & Marketing, 477 Mass. 456, 78 N.E.3d 37 (2017), the Massachusetts Supreme Court held that an employee who was terminated for testing positive for marijuana as a result of a lawful prescription may assert a claim of handicap discrimination under state law.  Cristina Barbuto told her supervisor that she would test positive for marijuana because she had a prescription for medical marijuana. When the test results came back, the company terminated Barbuto pursuant to its drug-free policy.

The court held that even if an employer has a drug policy prohibiting the use of such medication, the employer still has a duty to engage in the interactive process with the employee to determine whether there are “equally effective medical alternatives” whose use would not be in violation of its drug policy. If there are no alternatives, the employer must show that the employee’s use of the medication would cause the company undue hardship.

The employer also argued it terminated Barbuto for failing a drug test all employees are required to pass, and not because of her handicap. The court rejected the employer’s argument holding that such a policy would effectively deny a handicapped employee the opportunity for a reasonable accommodation, and therefore would amount to discrimination.

Connecticut

In Noffsinger v. SSC Niantic Operating, No. 3:16-CV-01938(JAM), 2017 WL 3401260 (D. Conn. Aug. 8, 2017), the U.S. District Court for the District of Connecticut held that federal law does not preclude the enforcement of Connecticut’s law, which explicitly prohibits employers from firing or refusing to hire an employee who is a “qualified patient for medical marijuana use.”

Florida

In November 2016, Florida approved Amendment 2, which legalized medical marijuana for individuals with certain “debilitating medical conditions.” On June 23, Gov. Rick Scott signed into law a bill which implemented Amendment 2.  The bill provides limited guidance for employers stating that:

“This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination.”

In reaching their decisions, the Rhode Island and Massachusetts courts relied in part on the language of the state statutes, noting that because they make clear that employers are not required to accommodate the medical use of marijuana in the workplace, the statutes implicitly recognize that the off-site use of medical marijuana might be a permissible accommodation.  Florida maintains a similar provision regarding on-site use, stating that employers do not have to permit employees to use marijuana “in any workplace.”

Florida law does not expressly address whether employers may have to accommodate medical marijuana use outside of the workplace, provided that the employee is not working “under the influence” of marijuana—a term that has not been defined by the legislature. Moreover, there are non-euphoric strains of medical marijuana. Thus, the question of whether an individual who tests positive for marijuana is “impaired” or “under the influence” is also of concern. Florida courts have yet to weigh in on any of these issues.

Until the legislature clarifies the law or Florida or federal courts interpreting it weigh in, Florida employers are at risk for employment decisions (and could be the test case). Thus, Florida employers should monitor changes in the law, and consult with legal counsel when considering workplace policies and practices.

Employers must also consider that even if they are not required to accommodate use of medical marijuana, the underlying medical condition requiring the prescription, may still require employers to engage in the interactive process and provide some other type of reasonable accommodation.

Ilanit Fischler is an associate in Fisher Phillips’ Fort Lauderdale office. She represents employers in a broad range of matters relating to the workplace, including claims of unlawful discrimination, harassment, retaliation, wage and hour and contract disputes before federal and state courts, and administrative agencies.