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Ask the Hotline | 'Disabled' Employee Uses Marijuana

January 2, 2018
I have an employee who tested positive for marijuana. Our drug-testing policy states that a positive test means corrective action and possibly termination. He told me that he has a medical condition that classifies him as disabled. He also says marijuana provides the only relief he can get and that Massachusetts law lets him do it. Is that true?
It depends. There are distinct federal and state laws about marijuana. 
Federal law classifies marijuana as a Schedule 1 substance under the Controlled Substances Act, meaning that it is illegal and furthermore that it has been determined by the Food and Drug Administration to have no medical use. The two key federal laws are the Drug-Free Workplace Act and the Department of Transportation (DOT) standard. 
Therefore, if a company has federal contracts or is:
  • a company that employs CDL drivers who operate commercial motor vehicles (CMVs) on public roads;
  • an interstate motor carrier;
  • an intrastate motor carrier;
  • a federal, state, or local government;
  • a civic organization (disabled veteran transport, boy/girl scouts, etc.); or
  • a faith-based organization;
it is illegal to employ someone who tests positive for marijuana. 
There is more information about federal DOT-related programs here  and about the Drug Free Workplace Act here.
It is an entirely different story under Massachusetts law. Medical marijuana has been legal in Massachusetts since 2013 and recreational marijuana since 2016.   
Due to a 2017 decision (popularly referred to by the plaintiff’s name, “Barbuto”) by the Massachusetts Supreme Judicial Court, employers of employees using prescribed medical marijuana must treat the employee as a disabled person, in the same manner as it would treat any other disabled user of lawfully prescribed medication.
That means if an applicant or employee tests positive for marijuana and the person produces a medical marijuana card, an employer must determine whether a reasonable accommodation may be made, even
if the employee is engaging in conduct (i.e., using marijuana outside of working hours) that may violate company policy.  The process, similar to the interactive process used with the Americans with Disabilities Act, will require the employer to work with the applicant/employee to determine whether an accommodation can be reached.
The Barbuto decision did recognize that the employer may argue that an accommodation presents an undue hardship and therefore need not make the accommodation. 
The case opens up a new compliance landscape for Massachusetts employers. The commonwealth estimates that there are approximately 43,000 medical marijuana card holders and that the number has grown by between 1,500 and 2,400 per month for the past year. Estimates suggest that that total number could ultimately double. 
On the other hand, the employer does not have to allow any applicant or employee to use medical marijuana during work time or to be under the influence while at work. 
Employers presented with a medical marijuana card by an employee seeking an accommodation should proceed slowly and thoughtfully to determine a response. Gather as many resources as possible and document whatever steps you take to ensure clarity for all parties going forward. Determine what drug policy you want to establish if you don’t have one. Make sure your supervisors are aware of the employee attempting to enter or remain at work while under the influence. 
Please call the AIM Employer Hotline at 800-470-6277 if you have any questions about this article.
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