Royal

Medical Marijuana and the Workplace

April 24, 2023

The landscape surrounding the use of marijuana is ever changing as of late. Each state currently has different laws regarding the use of medical and recreational marijuana. Although your state may have legalized medical and/or recreational marijuana, it remains illegal at the Federal level. This poses a challenge for employers, especially those with locations and employees in separate states.


Today, employers are permitted to make rules prohibiting drug and alcohol use in the workplace. Employers do not have to tolerate on-site drug and alcohol use in general. When it comes to off-site use, there are limited accommodations that are required to be granted for alcohol and drug use in relation to disabilities. Off-site medical marijuana use is one of those exceptions.


In Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court (SJC) held that an employee who uses medical marijuana may claim handicap discrimination against an employer for failing to waive mandatory drug testing for marijuana use absent an undue hardship to the employer’s business. (Note that the use of medical and recreational marijuana is legal in Massachusetts)


In Barbuto, an employee with Crohn’s disease was fired for a positive marijuana test following urine testing mandated by their employer. The employee had a medical marijuana card and requested accommodation of off-site use of marijuana for her disability.


The court held that an employee who uses medicinal marijuana off site and in a manner that does not interfere with job responsibilities cannot be terminated.


The Barbuto decision does not apply to on or off-site use of recreational marijuana. The employee was able to prevail because they were using medical marijuana for an underlying disability: Crohn’s disease.


Employers can still discipline/terminate employees who use recreational marijuana, whether on- or off-site. However, there are states that have prohibited employees being treated adversely for any marijuana use, including California and Washington D.C. You may start to see the laws in some New England states change to conform with these states. Be careful to stay abreast of any changes in the law.


If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

April 2, 2025
A recent court decision in Pennsylvania offers clarification that employers cannot take adverse action for marijuana use against individuals who possess medical marijuana cards, at least under Pennsylvania’s Medical Marijuana Act. In this decision, an individual received a conditional job offer for a non-safety sensitive position, contingent on a drug test. The individual disclosed his state-certified use of medical marijuana to treat anxiety, depression and ADHD, assuring the employer that it wouldn’t affect job performance or safety. After a positive test for marijuana, the employer rescinded the offer, citing safety concerns. The individual sued the employer under the Pennsylvania Medical Marijuana Act (“MMA”) and disability discrimination under the Pennsylvania Human Relations Act (“PHRA”). The Court allowed the individual’s claim under the MMA to proceed, potentially creating substantial precedent for tolerance of individual medical marijuana use in non-safety sensitive positions. The Court specifically noted that MMA protects individuals not just from discrimination based on card holder status, but also for adverse actions based solely on lawful medical marijuana use. The Court otherwise dismissed the individual’s claims under the PHRA because the PHRA does not require employers to accommodate medical marijuana use, even if it is prescribed for a legitimate medical condition. While a Pennsylvania decision, this decision potentially has rippling implications that will affect Massachusetts employers and employers in states where medical marijuana use is allowed under state law, which is allowed in some manner in 44 states. Employer Takeaways 1. Understand State-Specific Protections : Laws regarding medical marijuana use differ widely across states. In some areas, cardholder status is protected, while in others, it is not. Employers operating in multiple states must ensure their hiring and accommodation practices comply with the relevant laws in each state. 2. Base Safety Concerns on Job-Specific Evidence : General or speculative safety concerns are insufficient, particularly in states with strict employee protections. Safety risks cited should be specific, evidence-based, and directly related to the essential functions of the job. 3. Review Drug Testing and Accommodation Policies: Update your policies to reflect current state laws and clarify how your organization manages disclosures of medical marijuana use, especially during the hiring process . If you have any queries regarding drug testing or other workplace accommodations following this ruling, it is prudent to contact legal counsel. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.
March 28, 2025
The Royal Law Firm was a Finalist for Best Law Firm in The Best of The Valley Readers' Poll for 2025, as published by the Valley Advocate! Thank you to everyone who voted for us, and to those of you who trust us to help you in times of need. Click here to check out all of the category winners and finalists.
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