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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.

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