By:  Amy Epstein Gluck

Maybe. But maybe the question is not whether you need to but whether you should, given the way the judicial winds have been blowing.

We have long been blogging about the Americans with Disabilities Act’s (“ADA”) requirements that employers (with more than 15 employees) must provide a reasonable accommodation to a qualified employee with a “disability” within the meaning of the ADA (it’s a broadly interpreted term) that substantially limits one or more major life activity(ies) or has a record of a disability.

Always important to note, the ADA only protects employees who are “qualified,” meaning that the employee possesses the skill, experience, and education to perform the essential functions of the job with or without any reasonable accommodation.

Remember that a reasonable accommodation is a change in the way duties are performed to help a disabled employee perform the job’s duties or enjoy the benefits and privileges of employment.  The ADA requires employers to provide reasonable accommodations to an employee unless such accommodation(s) would pose an undue hardship, i.e., major difficulty or expense based on the employer’s resources and circumstances or those that would completely change the operation of the business.

Why am I giving you an ADA 101 Lesson? I’ll tell you.

More and more states are legalizing medical marijuana. However, with one extremely narrow exception, medical marijuana use is not protected under the ADA, as the ADA does not protect illegal drug use and marijuana remains illegal under federal law.Wait, what? OK, then, you may think. Case closed. I don’t even need to think about reasonable accommodations for employees certified to use medical marijuana, right?

Wrong.

A few recent case rulings based on state disability laws, which appears to be a growing trend, should make employers think otherwise.

The Underlying Disability Is Key

As I told you last week, in New York a certified medical marijuana patient must be deemed as “having a ‘disability’ under the state’s human rights law.” Thus, employers must reasonably accommodate the underlying disability associated with the legal marijuana use. So, in one administrative hearing in July 2017, an administrative law judge concluded that the New York City Taxi and Limousine Commission could not revoke a driver’s license after he tested positive for marijuana because he legally used the drug in accordance with the state statute – the “New York State Compassionate Care Act.”

The ALJ reasoned that a finding of unfitness based upon a “failed drug test as a result of illegal drug use” was not applicable to the driver’s legal use.

In another case, also last summer, when the employee informed her employer that she was certified to take medical marijuana to treat Crohn’s disease, a condition expressly included in that state’s (Massachusetts) medical marijuana act, and stated that she would not consume it at or before work, the employer terminated her for failing the drug test after her first day of work.

The employee claimed that she was “disabled” within the meaning of the Massachusetts’s state medical marijuana law and capable of performing the essential functions of her job with a reasonable accommodation. That accommodation was a waiver of the employer’s zero-tolerance drug policy.

The court said—the employee is right! The employer was required to engage in the “interactive process” to determine whether there were any alternatives for her that would not violate the employer’s policy. The court held that where no such alternatives existed, an exception to the employer’s drug policy constituted a reasonable accommodation, for which the employer would have to demonstrate an undue hardship to justify its failure to provide such an accommodation.

Bringing this back to last week’s post, an undue hardship could also be that the employee holds a safety-sensitive position. The Massachusetts employer did not allege as such.

One month later, in August 2017, a court in Connecticut agreed that a modification of an employer’s drug policy might constitute a reasonable accommodation. Under similar facts, including that the employee would not be under the influence at work, the employer argued that the state’s medical marijuana law was preempted by the federal Controlled Substances Act (“CSA”) and the ADA.

Did the court buy this argument?

It did not. Rather, the Court explained that the CSA does not “purport to regulate employment practices in any manner.” It rejected similar arguments that the ADA’s provisions about drug testing and illegal drug use preempt the Connecticut law because the ADA provisions do not expressly state that an employer may prohibit an employee from the illegal use of drugs outside of the workplace.

The court reasoned that just because the ADA permits employers to engage in drug testing, states could still have laws prohibiting employers from taking adverse acting against someone who fails a drug test.

Similarly, and earlier in 2017, in Rhode Island another court concluded that the state’s “Medical Marijuana Act” protected disabled individuals from discrimination not only because of their status as a medical marijuana cardholder, but also because of their actual use of medical marijuana. Here, the employer refused to hire a prospective employee when the person’s drug test (post-offer, of course!) was positive for marijuana after the person disclosed taking medical marijuana for a disability.

The aforementioned employees in these cases (except the New York one) all disclosed their use of medical marijuana to treat a disability, and the employers all had drug testing policies. In denying motions to dismiss in these cases, these courts recognized causes of action under state law disability discrimination statutes and under the discrimination clauses contained in the state medical marijuana acts, which were not preempted by federal law.

So What Does All This Tell Us?

These cases demonstrate a shift from “absolutely no” to “well, maybe…depending” when it comes to how employers navigate medical marijuana issues. As such, there are a few corresponding takeaways here:

1. Before you do anything, know your state’s position on medical marijuana. Is your state one of the 30 that has legalized medical marijuana? If so, what does that statute say? Remember, some state laws contain explicit anti-discrimination provisions protecting employees who are medical marijuana cardholders.

2. Interrogating a medical marijuana user about her (or him) disability before firing her may give rise to a viable disability discrimination claim. We’ve seen that where the disability (as opposed to the medical marijuana use) motivates the employment action, that could constitute discrimination based on a disability pursuant to state law.

3. As ever, if you know—because the employee tells you or the disabling condition is obvious!—that the employee has a disability, engage in the interactive process before making any irrevocable decisions.

These are all questions and issues to consider and review with employment counsel, and we’re happy to help. Feel free to message me for case names and cites.