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Accommodating Or Firing For Medical Marijuana Use? You Make The Call

The Massachusetts' Supreme Court recently ruled that a woman who has been terminated for testing positive for marijuana, which was legally prescribed for her Crohn's disease, could go ahead and sue her former employer for disability discrimination.

The employer had argued that because possession of marijuana is illegal under federal law, no action under Massachusetts state disability law could proceed, but the court disagreed. The Massachusetts chief justice wrote: "If a doctor concludes medical marijuana is the most effective treatment for an employee's debilitating condition, 'an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. The fact that the employee's possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation." Massachusetts enacted medicinal use of marijuana in 2012 and recreational use in 2016. Nate Raymond "Massachusetts court rules for woman fired for medical marijuana use," reuters.com (Jul. 17, 2017).

Meanwhile, an example of the opposite viewpoint has emerged in Florida. Its governor recently signed a medical marijuana law that, while it allows use of medical marijuana, it also allows employers to terminate employees for testing positive for marijuana. Specifically, in the Florida law:

  • "The term 'medical use' does not include use at a qualified patient's place of employment, except when permitted by his or her employer.
  • The law does not limit the ability of an employer 'to establish, continue, or enforce a drug-free workplace program or policy.'
  • Employers are not required to 'accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.'
  • Medical marijuana is not reimbursable under the Florida Workers' Compensation Law.
  • Most significantly, the law 'does not create a cause of action against an employer for wrongful discharge or discrimination.'"

Catherine A. Cano "Florida Governor Signs Medical Marijuana Law" lexology.com (Jun. 26, 2017).

So, the question for our readers is: would you fire an employee who tests positive for medical marijuana or accommodate the employee? You make the call.

Please let us know what you think in the comment section or take the poll. Here are some opinions of some of the McCalmon editorial staff:

Leslie Zieren, Esq.

Despite the legality of medical marijuana in 29 states as of today, the fact is that marijuana possession remains illegal under federal law. The U.S. Department of Justice did not have marijuana possession prosecutions as a priority under the former administration, but the current attorney general has made drug prosecutions a high priority.
 

Because marijuana is illegal under federal law and the ADA does not protect employees who engage in the "illegal use of drugs," some courts have said medical marijuana users cannot be protected by the ADA as qualified individuals with a disability, even if they use marijuana in compliance with state law. This has resulted in a confusing variety of court decisions, depending on interpretations of the conflict between the federal law and state laws, as well as state law interpretations of state disability discrimination laws. Employers should always consult with local counsel before terminating or disciplining an employee who has a medical marijuana prescription.

Meanwhile, in the U.S. Congress, in recent days an amendment passed to limit the DOJ's budget for the purpose of "protecting medical marijuana programs from federal interference in states that have legalized the drug for medical use." The measure passed, despite a letter from the current attorney general to House and Senate leadership asking them not to block the DOJ from using funds to enforce federal marijuana laws. Stay tuned for further developments in this evolving area of the law.

Jack McCalmon, Esq.

Federal law preempts state and local laws, and federal law prohibits the use of marijuana.

However, with the passage of more laws permitting use of marijuana and even more laws permitting use of medical marijuana, employers are, once again, placed in a difficult position.

Employers that prohibit intoxication on the grounds of safety have the strongest argument for prohibiting being under the influence of medical marijuana, which even outweighs the equal employment risk. Few would claim that a fork lift driver high on medical marijuana is safe.

However, for employees who do not pose a safety risk and are not under federal safety regulations, the chance of defending a lawsuit narrows considerably, if more states adopt the position that medical marijuana is a reasonable accommodation.

The best solution at this point is to discuss with your attorney how to address the issue of medical marijuana, and be ready to defend your choice until the law becomes clear.

 We'd like to know your opinion.
Please make the call and continue the conversation at #MedicalMarijuanaTerminations or join us on Facebook at #MedicalMarijuanaTerminationsFB or #MedicalMarijuanaTerminationsTwitter.

You can provide a comment on what you would do or answer our poll. Please note any comments provided may be shared with others. 

Finally, your opinion is important to us. Please complete the opinion survey:

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