Medical Marijuana in the Workplace

What happens if a potential employee tests positive for marijuana in pre-employment drug testing? An employer can refuse to hire the candidate if he or she tests positive for illegal substances, but what about medical marijuana? Short answer – if the drug is from medical marijuana usage, refusal to hire must be decided on a case-by-case basis.

In a recent Massachusetts Supreme Judicial Court case, Barbuta v. Advance Sales, the court indicated that before terminating an employee who uses medical marijuana off duty, the employer must engage in the “interactive process” (a reasonable dialogue) to determine if the employee can work with or without a reasonable accommodation pursuant to MGL Chapter 151B. Therefore, there may be cases in which an employer may not terminate an employee because he or she tests positive for marijuana. Likewise, there may be circumstances in which an employer may still hire a person who tests positive to marijuana in the pre-employment testing.

Employers need to look at possible accommodations, such as allowing for the employee to use the amount of medical marijuana allowed on weekends or after work hours. Every situation has to be evaluated on a case-by-case basis. If the amount of medical marijuana could affect job performance, then an accommodation may not be possible.

The court suggested areas in which an accommodation for medical marijuana may not be appropriate, such as:

• If the employment is related to a federal or other contract in which marijuana use is illegal, such as the Drug Free Workplace Act
• If the employee uses heavy machinery or other equipment
• If the use of medical marijuana would impair an employee’s ability to work or affects job performance
• If the employee’s use of medical marijuana would endanger public safety or would be an “unacceptable significant” safety risk to the public, the employer, or to other employees.

A word of caution: It is the employer’s responsibility to prove an accommodation is unreasonable.

If a workplace injury is caused by the abuse of legal or illegal drugs in the workplace, then pursuant to Section 27 of the Workers’ Compensation Act, the employee’s claim can be denied based on employee’s misconduct. However, it must be shown that the employee was impaired and that the impairment was a “direct cause” of the injury or accident.

Please note, however, that if the injury proves fatal, then Section 27 employee misconduct does not apply by statute and the employee’s dependents are allowed to receive workers’ compensation death benefits.

How does a supervisor know if drugs were involved in causing the injury? This information is most likely obtained through witness observations of an impairment directly before or after the accident, or by a post-injury drug test pursuant to the employer’s policy. But some limits exist here as well. A February 2017 Occupational Safety and Health Administration (OSHA) regulation does not allow employers to automatically request a drug test after every workplace injury because this practice is viewed as possibly hindering the reporting of injuries. Before requiring an injured worker be drug tested pursuant to a company policy, there must be a “reasonable possibility” that drug or alcohol use caused or contributed to the injury. Employers are still allowed to have drug testing policies for pre-job offers, post-leave, or random drug testing.

The new medical marijuana laws have had the greatest impact on post-injury medical marijuana use. An employee injured at work may seek medical marijuana to overcome pain or otherwise treat the effects of a workplace injury, filing a workers’ compensation claim to cover the costs. This can be expensive and long-term. It may be useful in some cases, such as severe burns, severe back injuries, or as an alternative to using an opioid (narcotic) pain medication. In any claim for medical expenses in a workers’ compensation claim, the employee must establish that the medical treatment is “reasonable, related and necessary.”  With regard to medical marijuana, the claim can be denied if it does not meet one of the three tests.

Active drug use of any kind in the workplace must be avoided. With regard to medical marijuana, the employer is encouraged to look at each instance individually and determine what type of accommodation is “reasonable” for the situation. Among the things to consider is whether there are alternatives. Are other pain management protocols available? Might an accommodation allow the employee to use marijuana outside work hours? As noted above, accommodations do not have to be offered in situations where: marijuana use is illegal; the use of marijuana would hinder an employee’s ability to perform the job; or the use of marijuana would endanger the employer or public safety.

Rules for the use of medical marijuana are evolving. Supervisors are encouraged to maintain a watchful eye, have sound policies in place, and treat each case individually. Please contact your Human Resource Department or legal representative if questions or circumstances arise regarding the usage of medical marijuana with a current employee or a potential new hire.

This information is not intended to provide a legal opinion on the issues discussed. Thanks to Vincent Tentindo, Managing Partner at Tentindo, Kendall, Canniff & Keefe, LLP, a law firm that specializes in workers’ compensation and insurance defense.