Employer/Employee Relationships Under Medical Marijuana Laws

I’ve recently been on a kick writing about Missouri’s recent passage of State Constitutional Amendment Two legalizing the use of medical marijuana within the state. Past posts discussed some of the specifics of the law and some of the problems that may develop when Missouri, like other states, has problems with conflicting federal laws (Second Amendment and gun ownership).

Continuing on my Missouri kick as they are one of the more recent states to legalize medical marijuana, I thought we’d next address another thorny topic – employment issues. As some of you will recall from earlier posts, different states have VASTLY different approaches to employers’ rights when it comes to their employees’ valid use of medical marijuana.

In Noffsinger v. SSC Niantic Operating Company LLC, 2017 WL 3401260, the Connecticut Supreme Court held that any person who used marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refused to employ them for this reason. In Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (2017), the Massachusetts Supreme Court concluded that a plaintiff may seek a remedy through claims of handicap discrimination in violation of Massachusetts General Law chapter 151B after an employee was terminated from her employment because she tested positive for marijuana following her lawful medical use of the drug.

Other states have gone in the opposite direction. Despite years having passed and sentiments having changed, laws have not necessarily changed. In 2010, the Supreme Court of Oregon heard an appeal from an employer who terminated an employee for his use of medical marijuana. The employee brought suit alleging the employer engaged in disability discrimination. The Supreme Court of Oregon disagreed.

In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (2010), the plaintiff stated he suffered from a variety of debilitating medical issues for more than 10 years, such as panic attacks, nausea and vomiting. He eventually obtained a registry identification card under the Oregon Medical Marijuana Act. Despite having lawfully obtained a registry identification card under Oregon’s laws, the Supreme Court ultimately held that under Oregon’s employment discrimination laws, plaintiff’s employer was not required to accommodate employee’s use of medical marijuana. This case is still good law in Oregon.

So what does this mean for states like Missouri who have newly enacted medical marijuana laws? The passage of Amendment Two will require employers and employees to re-think and re-evaluate the current policies they have in place. The passage of Amendment Two does not mean employers have to tolerate employees’ use of, possession of and/or working under the influence of marijuana. However, as we have seen from other states, it is possible the state courts could find in favor of employees in a discrimination lawsuit. A nuanced evaluation of when to drug test or if to drug test an employee will likely have to be enacted by all employers to avoid the appearance of any discrimination.

Like other states, its possible (and likely) employees will make requests for reasonable accommodations under both the Americans with Disabilities Act (ADA) and the Missouri Human Rights Act (MHRA). Missouri courts will need to decide how to interpret state law in conjunction with the ADA and Amendment Two at that time. If a Missouri company operates in multiple states, they will also need to be aware of any variances with what is permissible in those other states.

Finally, should a company terminate an employee based on medical marijuana use, it is almost a certainty that employment discrimination lawsuits will be raised. While Amendment Two contains language that appears to try and protect employers from lawsuits when employees are terminated for working while “under the influence” of marijuana, the problem will be how employers establish what “under the influence” actually means. There is currently no testing that quantifies what constitutes “under the influence”. Employers and employees alike should be aware of this problem.

Overall, the legalization of medical marijuana in more states is undoubtedly a good thing for thousands of individuals suffering from a variety of medical issues. However, both employers and employees must be aware of the looming controversies that are likely to occur as a result of an individual’s use of the drug. Honest and open communication between employers and employees is the first step and a knowledge of your state’s existing laws is paramount. Regardless of these efforts, it is likely that Missouri, like Connecticut, Massachusetts and Oregon before it, will be forced to deal with these issues in the coming years under Amendment Two. Both sides need to be prepared.

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