A recent decision by the Massachusetts Supreme Court leaves employers wondering: Is the federal ban on marijuana up in smoke?

The highest court in Massachusetts recently decided that a plaintiff who was terminated for testing positive for marijuana could proceed with her disability discrimination claim. Massachusetts is one of 29 states where the use of medical marijuana is legal under state law. Marijuana remains illegal under federal law.

The issue in Barbuto v. Advantage Sales & Mktg., LLC was whether the employee — who had a written certification from her doctor for medicinal marijuana to treat Crohn’s disease — could claim that her termination violated state law prohibiting disability discrimination. The employee notified her employer of her disability and marijuana prescription and requested an accommodation. Her employer ignored her explanation for the positive drug test, stating "we follow federal law, not state law." The employer filed a motion to dismiss the plaintiff’s disability discrimination claim on the basis that medical marijuana use is a federal crime and, thus, her requested accommodation was "facially unreasonable."

Importantly, the Massachusetts Medical Marijuana Act states, "[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions." The Massachusetts high court held that when an employer has a drug policy prohibiting certain medicine a disabled employee needs, including medicinal marijuana, the employer has "a duty to engage in an interactive process with the employee" to consider alternative medicines or other accommodations that would allow the employee to perform her job. The court further declared that using medicinal marijuana is not "per se unreasonable as an accommodation" simply because it is a violation of federal law.

Illinois, Indiana and Ohio have legalized medical marijuana use to some extent. The Illinois Compassionate Use of Medical Cannabis Pilot Program Act allows a resident who is diagnosed with certain medical conditions to use marijuana as long as that person registers with the Illinois Department of Public Health and has a physician’s written authorization. Most recently, Illinois added post-traumatic stress disorder ("PTSD") as an acceptable medical condition to apply for medical marijuana use. Illinois prohibits discrimination by an employer against an employee "solely for his or her status as a registered qualifying patient … unless failing to do so would put the … employer … in violation of federal law.” In regards to Indiana, it recently passed a law that legalizes medical marijuana but solely for individuals diagnosed with certain types of epilepsy. And Ohio allows use of medical marijuana by individuals suffering from 22 types of medical conditions, including cancer and PTSD. Unlike in Massachusetts, Ohio’s medical marijuana statute is much more employer-friendly, expressly stating that the statute does not prohibit an employer from taking adverse employment action against an employee for use of medical marijuana.

Instead of relying solely on the federal prohibition of marijuana, an employer should engage in the interactive process with an employee who tests positive for marijuana if an alleged disability is at issue. The employer should choose a qualified individual to engage with the employee and inquire about reasonable accommodations, including asking whether any other similarly effective medications exist that would not violate the employer’s policy, requesting information on the employee’s condition, considering whether modifications to certain work policies should be made or other appropriate accommodations. The Americans with Disabilities Act and similar state laws require employers to engage in this process, and the Barbuto ruling indicates that this process should be applied in the medical marijuana context.

It is also worth noting that the addition of PTSD as a condition qualifying for medical marijuana use in Illinois and Ohio may result in an increase in employee medical marijuana use. It is estimated that approximately eight million Americans suffer from PTSD, defined by the National Institute of Mental Health as continuing stress caused by witnessing a scary or dangerous event that leads to trauma. Not everyone who witnesses a traumatic event develops PTSD; thus, an employee’s PTSD must "substantially limit one or more major life activity" to qualify as a disability under federal law.

This is a developing area of law with many nuances. Please contact a member of Taft’s Employment group for additional information.