Work it Out Blog

Medical Marijuana and the Workplace

Sep 13, 2017 by Jill C. McQueen

In July, the Massachusetts Supreme Judicial Court decided a case involving medical marijuana, and employers nationwide took notice.  The case was brought by a woman terminated from her job after testing positive for marijuana.  While interviewing for a new job, Christine Barbuto revealed to the company that she used marijuana, under medical supervision, to alleviate symptoms of her Crohn’s Disease.  After only one day on the job, Barbuto was fired when a drug test yielded a positive result for marijuana.  She had neither used the substance at work nor appeared for work intoxicated.  Barbuto’s use of the substance was sanctioned under Massachusetts law, but the state’s rules on medical marijuana also allow employers to prohibit the use of marijuana in the workplace.  

Barbuto responded to her firing by filing suit against both her former employer and its human resources representative individually, claiming that her termination constituted disability discrimination and a violation of public policy.  The defendants urged the court to dismiss the lawsuit, arguing there could be no reasonable accommodation of drug use which violated both the employer’s own anti-drug policies and federal law. 

The court disagreed with the employer on a number of grounds, and concluded that the terminated employee must be permitted to pursue her case.  Specifically, the court rejected the argument that the use of medical marijuana—even though illegal under federal law—was “facially unreasonable.”  Even if it were, the court held that the employer had a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to marijuana that would not be in violation of its policy.  Where no such equally effective alternative exists, an employer bears the burden of proving the employee’s use of medical marijuana would cause undue hardship to the employer; otherwise, the employer cannot justify its refusal to make an exception to its drug policy.   The employer’s mistake in this case, it seems, was its failure to investigate the possibility of a reasonable accommodation. 

Ohio employers may take heart, however, in the differences between the Massachusetts law and the medical marijuana bill signed into law in Ohio in 2016.  The Massachusetts law provides that patients shall not be denied any right or privilege on the basis of their medical marijuana use; the court reasoned that if an employer could not accommodate an individual’s use of medical marijuana, the employee would effectively be denied that right or privilege.  The Massachusetts’ statute expressly does not require any accommodation of an on-site medical use of marijuana in any place of employment, from which the Massachusetts Supreme Judicial Court drew the inference that this limitation “implicitly recognizes that the off-site medical use of medical marijuana might be a permissible ‘accommodation . . . .’” 

Ohio Revised Code Section 3796.28 declares that nothing in the statute requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana; prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against a person because of that person’s use, possession, or distribution of medical marijuana; or prohibits an employer from establishing and enforcing a zero-tolerance drug policy or performing drug testing.  Unlike the Massachusetts statute, the Ohio law draws no distinction between on-site and off-site use.

Significantly, the Ohio statute also provides that an individual who is discharged from employment because of their use of medical marijuana will be considered to have been discharged for “just cause” for purposes of eligibility for unemployment compensation benefits, and that the statute does not permit a person to “commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana . . . .”  Ohio lawmakers have built into the legislation far greater protections for employers than their counterparts in Massachusetts.   Nevertheless, cautious employers may wish to follow this judicial guidance and postpone termination decisions until the accommodation investigation process may be completed.

For questions about this issue and assistance about drafting workplace policies, contact Jill McQueen or any of Day Ketterer's employment attorneys.  Call or email jcmqueen@dayketterer.com 330.458.2161.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.