Marijuana and the workplace

Millions of American workers have a right that they did not have until recently; the right to lawfully cultivate, use and possess marijuana. All of the New England states have legalized medical marijuana, and Maine and Massachusetts have legalized recreational marijuana. Rhode Island’s proposed recreational-marijuana law remains under study by a legislative commission but could become law in 2018 or soon thereafter. At the same time, marijuana remains a Class I controlled substance federally, which means the federal government categorizes marijuana as having a high potential for dependency without an accepted medical use.

The law regarding hiring and employing medical-marijuana cardholders is evolving. The R.I. Superior Court ruled in Callaghan v. Darlington Fabrics that a company violated the medical-marijuana law and may have violated the Rhode Island Civil Rights Act by refusing to hire a medical-marijuana cardholder because she was using marijuana and could not pass the company’s pre-employment drug test. If an applicant’s or employee’s marijuana usage creates legitimate and demonstrable safety or security concerns, refusing to hire or terminating seems unlikely to cause liability. But absent such concerns, refusal to hire or employ medical-marijuana cardholders who agree not to possess or use marijuana at work creates exposure to liability. The Darlington Fabrics decision … sweeps medical-marijuana cardholders into the universe of disabled individuals enjoying protection against discrimination and refusal to reasonably accommodate.

Gov. Charlie Baker signed into law at the end of July the legislation needed to implement the recreational-weed ballot question approved by commonwealth voters in 2016. The Massachusetts Supreme Judicial Court has already weighed in regarding employers’ duty to reasonably accommodate medical-marijuana users. In Barbuto v. Advantage Sales, the SJC ruled that an employer has the burden to prove that accommodating a disabled employee’s off-site use of medical marijuana would cause an undue hardship. So, in Massachusetts, employers must engage in the “interactive process” required for the exploration of accommodating medical-marijuana usage just as they would with a disabled applicant or employee using some sort of other medication for a disability.

Employers retain the right to prohibit possession and use of marijuana, even by cardholders, in the workplace. The Rhode Island medical-marijuana law expressly provides that it does not require “an employer to accommodate the medical use of marijuana in any workplace.” The prohibition in the law against discrimination in employment solely on the basis of a person’s status as a cardholder, even read broadly as in the Darlington case, cannot be reasonably construed to force an employer to permit possession of a federally controlled substance on the employer’s property.

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One challenge for employers is determining whether an employee’s use of marijuana – whether for medical or nonmedical reasons – has impaired his or her ability to perform safely and effectively. Employers should also remember that testing employees can be risky. Most Rhode Island employers can test employees only when the circumstances satisfy the strict criteria of the Rhode Island employee drug-testing law. Employees who test positive for the first time must initially be referred to a substance-abuse professional. Under most circumstances, employers may be better off eschewing testing and instead focusing on an employee’s behavior and performance. An employee who behaves or performs badly can be disciplined and fired.

Andrew Prescott, a labor and employment attorney, is managing partner of Nixon Peabody’s Providence office.