United States: Massachusetts Supreme Judicial Court Considers Employees' Use Of Medical Marijuana

Last Thursday, the Massachusetts Supreme Judicial Court (SJC) heard oral arguments in a case that asks whether employers can be required to make accommodations for employees' off-duty use of medical marijuana.

The case was brought by a woman who suffers from Chron's disease and who treats the condition with marijuana, as authorized by state law. (Massachusetts voters passed an initiative in 2012 decriminalizing the possession and use of marijuana for medical purposes. In 2016, Massachusetts voters passed a measure decriminalizing marijuana for recreational use. Marijuana is illegal for all purposes under federal law.) After the plaintiff accepted an entry-level job at a marketing company, she was told that she would need to take a drug test. At that point, the plaintiff disclosed that she would not pass the test because of her lawful use of medical marijuana. She told her supervisors that she does not use marijuana every day, and that she would never consume the drug on the job. She was initially told by the supervisors that her use of medical marijuana "should not be a problem," and she submitted to the test. However, after one day on the job, the plaintiff was terminated by the company's human resources representative, who told her, "we follow federal law, not state law." The plaintiff sued, alleging that her termination violated the Massachusetts anti-discrimination statue (Chapter 151B) and the state medical marijuana law. She also claimed that the employer's conduct amounted to an invasion of her privacy and a violation of public policy. The trial court granted the employer's motion to dismiss all of the plaintiff's claims other than her invasion of privacy claim, and the plaintiff appealed.

At oral argument, the plaintiff's attorney told the justices that his client "should not be faced with the cruel choice of treating her disability or earning a livelihood." The employer's attorney argued that employers should be allowed to take steps, like terminating employees who fail a drug test, in order to maintain a drug-free workplace, especially since marijuana is still illegal under federal law. No one questions an employer's right to prevent employees from using marijuana on the job, even for medical purposes. Significantly, the Massachusetts medical marijuana law states that employers are not required to make any accommodation for "on-site medical use of marijuana in any place of employment," but the law is silent about employees' off-site use of the drug.

The Massachusetts Commission Against Discrimination (MCAD) filed a "friend of the court" brief, in which it argued that Chapter 151B is meant to be "liberally construed" in order to meet its "broad purpose" of "remov[ing] the barriers faced by individuals with disabilities in the workplace and to promote equal opportunities in employment." It is the MCAD's position that, in some circumstances, "the termination of an individual's employment based on lawful use of medical marijuana outside the workplace, or the failure to consider the off-site use of medical marijuana as an accommodation that permits an individual with a disability to work, may violate [Chapter 151B]." The MCAD's statements on the issue could be significant, since Massachusetts courts have traditionally given a great deal of deference to the MCAD's interpretation and application of Chapter 151B.

A decision is expected later this year. Watch this space for updates.

A video recording of the oral arguments can be viewed here.

The parties' briefs are available for download here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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