Google “medical marijuana”, and you’ll likely find new headlines, stories, and issues just about each day. This is so after at least 29 states and the District of Columbia have legalized the drug for medicinal use. Of course, the possession and consumption of marijuana for any reason remains in violation of the federal Controlled Substances Act. The ensuing legal landscape makes it difficult for individuals and businesses to understand whether they are following the law properly.
After Maryland passed its own medical cannabis law in 2014, a multitude of problems – from lawsuits alleging improper licensing of growers, to limitations in supplies and other difficulties at dispensaries – hindered access to medical marijuana in Maryland. As the kinks get worked out, and medical marijuana becomes more available in Maryland, compliance questions become more crucial to employers.
In particular, employers may question whether they can still maintain drug-free workplace policies and drug-test their employees for marijuana? Can an employer discipline an employee who tests positively for marijuana, even if that employee has used marijuana in accordance with state law? How does the medical cannabis law impact an employer’s compliance with anti-discrimination laws and accommodation obligations? The answers to these questions do not appear on the face of the statute itself. Nor have Maryland courts provided them.
What we do know is that the statute generally governs processes such as how to become a qualifying patient to receive medical marijuana, a caregiver to administer it, and a certifying physician to be able to treat with it, and it covers the steps necessary to gain a license to grow and dispense marijuana for medicinal purposes. We also know that the statute contains a provision that shields individuals (including qualifying patients) from the denial of any right or privilege for the medical use of marijuana. MD Health-General Code Ann., § 13-3313(a). What is less clear is how this provision affects the employer-employee relationship.
Drug-testing employees for certain employment purposes remains legal in Maryland. The Maryland Medical Cannabis Commission (tasked with administering the medical cannabis statute) takes the position that “Maryland law does not prevent an employer from testing for use of cannabis (for any reason) or taking action against an employee who tests positive for use of cannabis (for any reason).” Courts in other jurisdictions have found that other state marijuana laws do not protect employees from adverse employment actions for using medical marijuana lawfully.
Recently, however, the Massachusetts Supreme Court took a dissimilar position by interpreting the Massachusetts medical marijuana law as shielding an employee’s right to reasonable accommodation for her disability. Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017).
In Barbuto, the plaintiff employee accepted a position with the defendant employer, who advised her to undergo a mandatory drug test. She admitted that she would test positively for marijuana, which she stated she took in accordance with state law to treat her Crohn’s disease. When the test returned the positive results, her employment was terminated. She sued under the state’s handicap discrimination statute.
The court rejected the defendant’s arguments (1) that federal law preempted the state law on the issue of legal use of medical marijuana and (2) that a medical marijuana accommodation is facially unreasonable because medical marijuana violates federal law. Instead, the court held that an employer has a duty to reasonably accommodate an employee who takes medical marijuana for a debilitating condition.
As the court pointed out, the Massachusetts marijuana law shields qualifying individuals from being “denied any right or privilege” for taking medical marijuana lawfully. It found that reasonable accommodation for a disability is a statutory right falling within “any right or privilege” protected by the medical marijuana statute. Consequently, by failing to explore with the plaintiff whether there were ways she could treat her condition without medical marijuana, the employer denied her the right to reasonable accommodation.
Although Barbuto is Massachusetts law – not Maryland law – employers should be aware of its holding for many reasons. First, both states have similar statutory language that protects medical marijuana users from being denied any right or privilege. Second, Maryland courts have not yet considered whether this protection extends to employees facing adverse employment actions for taking medical marijuana. If and when Maryland finally does, the Barbuto case will likely weigh in on the issue.