Altered State: Navigating the Haze Around Medical Marijuana in the Workplace

Medical marijuana occupies a gray space within the United States. Marijuana is an illegal drug under federal law and is included on the Drug Enforcement Administrations’ Schedule I, along with heroin and LSD. The drugs on this schedule are considered to have “no currently accepted medical use and a high potential for abuse.” In spite of the federal prohibition, thirty states have passed some form of legislation allowing for the medical use of marijuana.

This conflict between state and federal law may cause employers confusion—especially in states with expansive disability protections. For example, the New Jersey Law Against Discrimination (“NJLAD”) which provides extensive protections for individuals with disabilities. The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) supplements the NJLAD by stipulating that employees using marijuana for a medicinal purpose are considered to have a disability and such use is protected. These protections, of course, do not force employers to allow employees to use marijuana at work but do pose a dilemma when it comes to workplace drug testing. Many companies require employees to pass drug tests for federally prohibited narcotics. However, the NJLAD requires employers to provide reasonable accommodations to disabled individuals. Since the NJCUMMA classifies medical marijuana users as disabled, is a drug test a violation of their accommodations?

The Courts have asserted that a drug test requirement is not necessarily waived as a result of disability protections. Recently, in the case Cotto v. Ardagh Glass, Inc., Judge Robert B. Kugler, of the U.S. District Court for the District of New Jersey, ruled that the NJCUMMA does protect medical marijuana users from criminal and civil penalties but expressly excludes employers from its scope. Indeed, the NJCUMMA asserts that “nothing in this act shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.”

At the same time, in Barbuto v. Advantage Sales and Marketing, LLC, the Supreme Court of Massachusetts found that employers have a duty to engage in an interactive process and explore reasonable alternative accommodations for medicinal marijuana users—including the permissibility of using marijuana off-site during non-working hours.

At face value, these rulings seem contradictory. The Cotto opinion maintained that medical marijuana users have some protections but employers are not required to implement wide accommodations such as drug test waivers. The Barbuto Court, however, asserted that at the very least, employers must attempt to find reasonable accommodations. While these cases occurred in different jurisdictions and interpret specific state and commonwealth law, these two rulings highlight the challenges that national employers must navigate. Federal guidance in regards to accommodations and marijuana usage will not likely be forthcoming in the near future. Therefore, employers must proceed cautiously when making employment decisions related to medical marijuana usage and pay close attention to protections provided to employees under state law.

While this area is evolving, employers consider implementing the following best practices:

  1. Do not make immediate employment decisions without consulting in-house counsel. For instance, if a drug test comes back positive for marijuana, do not consider it an immediate disqualifier for employment. Evaluate on a case-by-case basis with counsel.
  2. Engage in the “interactive process” of providing reasonable accommodations. If you learn an employee is using medical marijuana, you may be on notice of a possible disability.
  3. Confidentiality is key. Maintain the employees’ confidentiality to the extent possible. Ask relevant individuals to keep conversations confidential.
Kelley Drye & Warren LLP’s Labor and Employment practice group continues to monitor this issue and is available to advise employers on this and other issues.