Questions of Substance
By John Gannon, Esq.
Can a job applicant be rejected because of medical-marijuana use? Can employees be let go for lawfully using narcotic pain medications, such as prescription opioids? These are questions without easy answers.
Medical-marijuana dispensaries are opening throughout the Commonwealth. Meanwhile, prescription opioids are wreaking havoc across the country. With medical marijuana use on the rise, and prescription-medication dependence becoming increasingly common, employers are left in the precarious position of trying to help their employees while ensuring workplace safety and employee productivity. Now more than ever, employers need to be aware of the legal pitfalls associated with disciplining or firing employees who rely on these substances for palliative care.
In November 2012, Massachusetts residents voted to legalize marijuana for medicinal purposes. Despite marijuana being classified as an illegal Schedule I drug by the federal government, state law does not punish marijuana use by qualifying patients.
Approved patients can obtain a medical-marijuana identification card and purchase marijuana at various licensed dispensaries. There are approximately 10 dispensaries currently approved to sell marijuana in Massachusetts, but that number could soon increase because nearly 100 additional dispensaries are close to final approval.
Use by Employees
The Massachusetts medical-marijuana statute explains that employers do not have to allow on-site medical marijuana usage, but does not address off-site use. So can employers take action against employees for their off-site medical-marijuana use? This has been litigated in Massachusetts and other states. Most courts, including a Massachusetts Superior Court, have confirmed that employers can reject applicants and terminate employees who fail drug tests due to medical-marijuana usage.
The common rationale is that marijuana remains illegal under federal law, so employers can refuse to accommodate illegal activity. However, that rationale should be taken with a grain of salt.
Last month, the Massachusetts Supreme Judicial Court heard oral arguments in a case about the rights of employees who use medical marijuana off-site. The plaintiff in that case was disabled and using medical marijuana for her condition. She was rejected for employment after failing a drug test. She claimed this was disability discrimination because medical marijuana did not impact her ability to do the job.
The court’s decision, which should be issued in the coming months, could change the rights of employers relative to medical-marijuana users. Employers should monitor the status of this case carefully.
What about Use of Prescription Drugs?
If an employer suspects an employee is taking a prescribed opioid — or any other medication that could compromise their ability to perform their duties — can the employer ask the employee about it? As a general rule, the answer is no.
Asking an employee about their prescription medications is a ‘disability-related’ inquiry that could run afoul of the Americans with Disabilities Act (ADA), which prohibits employers from asking disability-related questions unless there is good reason to believe the employee cannot effectively or safely do the job. This might include a visual observation or reliable information from a credible co-worker about safety concerns.
Even if an employer has a valid reason to believe the employee is unfit because of prescription-drug use, termination of employment is not the next step. Employers have an obligation to engage employees in an interactive dialogue to determine whether it can accommodate their medication use.
This might involve offering a temporary ‘light-duty’ assignment until the employee is off the medication, or giving a job-protected leave of absence until the employee is fit to return. Terminating an employee without engaging in this interactive dialogue could trigger costly damages under the ADA. Employers concerned about an employee’s prescription-drug use should consult with an employment attorney before taking action.
What If an Employee Is Acting Oddly?
Employers may also encounter a situation where an employee is acting oddly, and the employer suspects that drugs might be involved. Can an employer ask the employee to take a drug test?
Generally, it is acceptable to ask employees to take a drug test when the employer has an objective, reasonable suspicion that drugs are involved. To ensure legal compliance, employers should have a drug-testing policy and provide training to all frontline managers about how to spot drug use. Employers should consult with employment counsel when establishing and enforcing any reasonable-suspicion drug testing program or policy.
Medical-marijuana laws and employee prescription-drug use put businesses in a tough position. Employers attempting to protect the safety of their workers and others could inadvertently violate an employee’s rights under the ADA. But if an employer merely ignores the problem, they could face financial consequences stemming from an employee’s use of illegal or prescription drugs.
So what should an employer do? The single best thing an employer can do to prevent exposing themselves to legal risk is to consult with an attorney before taking any action. Doing so will only take a few minutes in the short term, but could save the business tons of time and money in the long run.
John Gannon is an attorney with Skoler, Abbott & Presser, P.C.