However, the Massachusetts Supreme Court may have just hashed out a new direction by ruling that accommodation may be required for marijuana use consistent with a valid prescription.

What Sparked This Decision?

The seeds of this new perspective stem from a case where a job applicant told her prospective employer that her pre-employment drug test likely would be positive because she uses prescription marijuana to treat her Crohn’s disease. She explained that she did not use marijuana every day, and that she would not use it before or during work.  Nevertheless, the employer withdrew the job offer upon receiving the positive test result.

The applicant sued for disability discrimination under the Massachusetts anti-discrimination law.

The Massachusetts Supreme Court concluded that the federal law should not be interpreted to mean that accommodation for medical marijuana use is per se unreasonable. While the law would not protect medicinal marijuana use at work, the justices felt that it implicitly does protect the right to use it while off duty.  If off-duty use is legally permissible, then a positive drug test reflecting the use of medicinal marijuana should not result in a penalty to the employee.

The High Court’s Reasoning

The justices were quite blunt in saying that the decision does not mean that employees must be allowed to come to work under the influence of medical marijuana, They just said that marijuana use should not automatically disqualify an individual from employment and that an interactive process must be followed to determine whether off-duty use of medical marijuana can be reasonably accommodated. In this regard, they basically treated medical marijuana like any other prescribed narcotic.

The big issue here relates to how marijuana usage is detected as opposed to other forms of medication. Medical science often can determine whether someone has ingested only the prescribed dosage of a narcotic as opposed to an excessive (and more recreational) dosage, and can make an educated determination that the user is affected by the use.  With marijuana, this remains very difficult.  Therefore, if an employee tests positive for marijuana and has a valid prescription, an employer likely will not be able to determine that the use is inconsistent with the prescription or that it necessarily will impair production or safety on the job.

Bottom Line

Though this case was decided under Massachusetts law, it is instructive for Minnesota employers. Certainly, employers in Minnesota can still test for the illegal use of drugs, including use that is inconsistent with a valid prescription.

In addition, employers may continue to regulate their workplace to insure that employees are not engaging in work while using drugs that may impair performance or present a risk of harm to the employee or others.

However, when an employee is taking a prescribed medication consistent with the terms of a valid prescription, this case tells us that an employer may not be able to just treat the employee as if they are violating federal law. Instead, the employer should engage the employee in an interactive process to determine whether a reasonable accommodation may exist that will allow the employee to perform such work in a safe and productive manner.

It remains to be seen whether this case will create a buzz in other jurisdictions such that other similar decisions will soon be in the pipeline.

The post Mass. Court Blazes New Trail On Employee Medical Marijuana Use appeared first on Felhaber Larson.

Under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), Minnesota employers can’t fire an employee after their first positive drug or alcohol test unless two conditions are satisfied:

First, the employer must give the employee an opportunity to participate in “either a drug or alcohol counseling or treatment program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical dependency [professional].”

Second, the employee has refused to participate in or failed to successfully complete the program.

With a Choice Between Options A and B, Choosing Option C Won’t Work

In Jones v. Green Bay Packaging, Inc. James Jones tested positive for marijuana after a workplace injury. His employer, Green Bay Packaging (“GBP”), placed him on an unpaid suspension and told him that he could return if he (1) immediately submitted to an evaluation by a chemical dependency treatment facility approved by GBP, and (2) successfully participated in a treatment program for the period of time recommended by that approved facility.

Jones initially agreed to the company’s proposal and identified two treatment facilities where he could be evaluated and treated, both of which GBP approved. Jones was then evaluated by one of the designated facilities and was told that he should receive outpatient treatment four times per week. Jones claimed he could not afford the gas money for travelling 30 minutes to this facility four times per week so he suggested that he attend a different facility closer to his home. Said no and said Jones would be terminated if he did not participate in the program where he had already been evaluated. When Jones refused, GBP fired him.

Jones sued GBP claiming that his termination violated DATWA because he was in fact willing to attend a treatment program. The trial and appellate courts both disagreed, noting that the company followed the statute by providing Jones with an opportunity to attend a treatment program that the company had approved. When Jones refused to attend that particular program, GBP was within its legal rights to terminate him. The Minnesota Court of Appeals explained that the plain language of DATWA did not require GBP “to grant Jones an additional opportunity to attend a different treatment program after the company had already approved the treatment center initially requested by Jones.”

Bottom Line

A Minnesota employer must provide an employee with an opportunity for counseling or treatment before discharging the employee following a first positive drug test under DATWA. However, once the counseling and/or treatment provider has been selected, the law does not let the employee keep shopping for alternative treatment programs. This helps move the process along and bring finality to the drug testing process and related follow-up.

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