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Where There’s Smoke, You Can’t Always Fire

By Eric J. Schreiner

Massachusetts’ highest court has recently determined that employees who lawfully use marijuana under a state’s medical marijuana law may have claims when they are terminated by their employer for testing positive for marijuana.

In Barbuto v. Advantage Sales and Marketing, LLC, the plaintiff former employee had Crohn’s disease, and her physician had provided her with a written certification that allowed her to use medical marijuana to treat the disease under the state’s medical marijuana law.  The plaintiff was fired after her first day of employment when the results of a drug test showed that she tested positive for marijuana in violation of the employer’s drug policy.  The former employee sued her former employer, alleging a number of claims including claims under Massachusetts’ handicap discrimination law.

The Supreme Judicial Court of Massachusetts found that the former employee was a qualified handicapped person under the state’s handicap law (i.e., a person with a physical impairment that limits one or more major life activities who is capable of performing the essential functions of her job with a reasonable accommodation) and that an exception to the employer’s drug policy to permit use of medical marijuana was a facially reasonable accommodation.  The court expressly rejected the employer’s argument that an accommodation that would allow the employee to use marijuana is per se unreasonable because marijuana is illegal under federal law.  Ultimately, the court found that the former employee stated a claim for handicap discrimination because her continued use of medical marijuana was not an unreasonable accommodation on its face and because she had adequately alleged that the employer failed to participate with her in the interactive process to determine if there was a reasonable accommodation for her condition.  In reaching its decision, the court found support in the state’s medical marijuana law, which provided that a qualified user shall not be denied “any right or privilege” on the basis of their use of medical marijuana.  Finally, the court noted that while the former employee could proceed with her claim, she had not yet proved it and the employer could still prevail if it was able to establish that the former employee’s use of medical marijuana was not a reasonable accommodation because it created an undue hardship for the employer.

Not long after the Massachusetts Supreme Court’s decision in Barbuto, a Connecticut federal court in Noffsinger v. SSC Niantic Operating Co. found that a prospective employee who had a job offer rescinded after she tested positive for marijuana use, and who was a qualified user under Connecticut’s medical marijuana law, could proceed with her claim against her prospective employer under a provision of the state’s medical marijuana law that prohibited discrimination in employment.  The court rejected the employers’ argument that the state law was preempted by several federal laws, including the Controlled Substances Act, the Americans with Disabilities Act and the Food, Drug, and Cosmetic Act.

The Barbuto and Noffsinger decisions provide some insight into how state courts in Pennsylvania could potentially view discrimination claims brought by an employee who is a qualified user of medical marijuana under Pennsylvania’s medical marijuana law.  Like the Massachusetts anti-discrimination statute at issue in Barbuto, Pennsylvania’s Human Relations Act prohibits disability discrimination.  Even more critical, like the Connecticut medical marijuana law in Noffsinger, Pennsylvania’s medical marijuana law includes a provision that prohibits discrimination against an employee based on the employee’s status as a certified medical marijuana user (as discussed in my prior blog “How the Pennsylvania Medical Marijuana Act Could Impact Employers”).  Consequently, Pennsylvania employers should be aware of this issue and need to be prepared to deal with employees who are certified medical marijuana users.

If you would like more information on this issue, please contact Eric J. Schreiner at 215.496.7217 or eschreiner@kleinbard.com.