HR Alert

MA Supreme Judicial Court: Certain Employees Testing Positive for Medical Marijuana May Seek a Remedy Through a Claim of Handicap Discrimination

Decision May Affect Workplace Policies and Practices

The Massachusetts Supreme Judicial Court has held that a qualifying patient who has been terminated from his or her employment for testing positive for marijuana as a result of lawful medical use of marijuana may seek a remedy against his or her employer for handicap discrimination under state law. Highlights of the court's opinion are presented below.

Opinion

According to the court, a qualifying patient who has been terminated from his or her employment for testing positive for marijuana as a result of lawful medical use of marijuana may seek a remedy against his or her employer through claims of handicap discrimination in violation of state nondiscrimination law. The court stated that the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Since state law does not require accommodation of on-site medical marijuana use in any place of employment, this limitation implicitly recognizes that off-site medical marijuana use might be a permissible "accommodation" (which is a term of art specific to the law of handicap discrimination).

Additionally, the court noted that where a company's policy prohibiting any use of marijuana is applied against a handicapped employee who is being treated with marijuana by a licensed physician for his or her medical condition, the termination of the employee for violating that policy effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination.

Note: According to the opinion, the employer still bears the burden of proving that the medical use of marijuana would impose an undue hardship to the employer's business.

The court also concluded that there is no implied statutory private cause of action under the state medical marijuana law.

Background

Under the state nondiscrimination law (subsection 16), it is generally unlawful for an employer with 6 or more employees to (among other things) dismiss from employment or otherwise discriminate against (because of his or her handicap) any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation--unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business.

The state medical marijuana law provides that there should be no punishment under state law for qualifying patients for the medical use of marijuana, and that any person meeting the requirements under the law will not be penalized under state law in any manner, or denied any right or privilege, for actions based on medical marijuana use. However, the law does not (among other things) require any accommodation of any on-site medical use of marijuana in any place of employment, or of smoking medical marijuana in any public place.

Click here to read the text of the opinion. Employers with questions about the decision's impact on workplace policies and practices are advised to contact a knowledgeable employment law attorney.


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