Dive Brief:

• An employee in Massachusetts can proceed with her lawsuit alleging that her termination for medical marijuana use violated the state’s anti-discrimination law, the state’s highest court has determined.
• The plaintiff was fired after one day of work, when she failed a post-offer drug test. She sued, alleging that the employer failed to accommodate her Crohn’s disease by refusing to allow her to use the drug off site and outside of work hours.
• The court said she can continue with her suit because her accommodation request wasn’t necessarily “unreasonable” under the law. It cautioned, however, that it’s not necessarily reasonable either and that a jury may have to decide.

Dive Insight:

While many states allow their citizens to use marijuana for medical purposes, few require employers to accommodate that use. That number is climbing, however, and employees are enjoying more success in court.

Still, marijuana remains illegal under federal law, which some employers say puts them in a difficult position. The employer in the ongoing Massachusetts case, for example, argued that because the prescribed medication is illegal to possess under federal law, “an accommodation that would permit the plaintiff to continue to be treated with medical marijuana is per se unreasonable.”

Courts have generally accepted that argument with respect to the federal Americans with Disabilities Act, but things are more complicated when state laws are involved. In this case, the court said it couldn’t dismiss the employee’s discrimination suit because the state’s medical marijuana law says that “patients shall not be denied ‘any right or privilege’” based on its use. And, despite the employer’s argument, “[t]he fact that the employee’s possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation” under the state’s anti-discrimination law, the court said.

Of course, that doesn’t mean the request was reasonable, either. The employer will still have the opportunity to show that the request was unreasonable, or that it would have posed an undue hardship on its business. “For instance, an employer might prove that the continued use of medical marijuana would impair the employee's performance of her work or pose an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees,” the court noted.

Employers with workers in Massachusetts will want to keep an eye on this case. For now, however, at least one thing is clear: Massachusetts law does not require “any accommodation of any on-site medical use of marijuana in any place of employment."