The legalization of medical marijuana in several jurisdictions throughout the US presents employers with the difficult task of reconciling their anti-drug policies with those state statutes authorizing marijuana use for medical purposes. Adding an additional layer of complexity to this already uncertain landscape, is the growing number of states that have also legalized marijuana for recreational use. As state marijuana laws continue to grow and develop, employers must stay attune to how they approach employees’ off-duty marijuana use for both medical and recreational purposes.

Medical Marijuana and the Duty to Accommodate

Perhaps the most common issue employers now face is whether they must accommodate an employee’s use of medical marijuana for a disability. Because marijuana continues to be an illegal drug under federal law, the Americans with Disability Act does not require employers to accommodate an employee’s off-duty use of medical marijuana, even when condoned under state law. Several states that have legalized medical marijuana, including California, Colorado, Georgia, Michigan, Montana, New Hampshire, New Jersey, New Mexico and Ohio, follow suit and do not currently protect off-duty use of marijuana for medicinal purposes.

Yet some states, such as Alaska, Arizona, Arkansas, Connecticut, Delaware, Illinois, Massachusetts, Minnesota, New York and Rhode Island protect an employee’s off-duty use of medical marijuana for valid medical reasons, provided the employee does not report to work under the influence. In those states, a positive drug test alone will not warrant disciplinary action — rather, employers must provide concrete proof of an employee’s intoxication while at work. Many of these states also require that employers reasonably accommodate employees who use marijuana for medical purposes, such as additional time off or a leave of absence during the time the employee must use the drug. Most state statutes provide exceptions for those employees in safety-sensitive positions.

Massachusetts Court Protects Off-Duty Medical Marijuana Use

A recent opinion issued by a Massachusetts high court highlights the trend towards protecting workers who partake in medical marijuana use outside of the workplace and outside of working hours. In Barbuto v. Advantage Sales and Marketing, LLC, the court held that an employer had to provide a reasonable accommodation to an employee for off-duty use of medical marijuana, notwithstanding the employer’s zero tolerance drug policy.

In Barbuto, the employee accepted a salesperson position that was contingent upon passing a post-offer drug test. After accepting the position, the employee informed her employer that she used medical marijuana to treat her Chron’s disease. When the employee’s drug test came back positive for marijuana, the employee was fired for violation of the company’s drug policy. In allowing the employee’s reasonable accommodation claim to proceed under Massachusetts state law, the court held that the employer had to engage in the interactive process and that an exception to the company’s anti-drug policy to allow the off duty use of marijuana for medicinal purposes could constitute a reasonable accommodation. Connecticut and Delaware have likewise interpreted their state laws to prohibit adverse employment actions against those employees who use marijuana for medicinal purposes while off duty.

More Discretion For Employers When It Comes To Recreational Marijuana

Employers enjoy significantly more discretion in their approach to an employee’s off-duty use of recreational marijuana. While several states — including Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington — have legalized recreational marijuana use, Maine is the only state that protects an employee’s off-duty use of recreational marijuana. Indeed, most of these state marijuana laws expressly provide that they do not inhibit an employer’s ability to enforce its zero tolerance drug policy. Therefore, employers in those states may continue to discipline or terminate employees who test positive for marijuana, even if those employees engaged in legal marijuana use while off-duty, unless that state expressly protects off-duty medicinal use of the drug.

Takeaways For US Employers

Because of new state statutes and growing case law governing both the medical and recreational use of marijuana, US employers must keep a close eye on whether their drug policies and drug testing practices comply with the laws of the state(s) in which they operate. Employers in those states that protect off-duty use of medical marijuana should update their zero tolerance drug policies to reflect a willingness to accommodate off-duty marijuana use for valid medical reasons. In that same vein, employers in those states that have legalized recreational marijuana should update their zero tolerance drug policies to underscore the employer’s right to prohibit drug use in the workplace and to administer drug tests to ensure compliance with those policies.

For assistance in developing your company’s drug and alcohol-related policies, contact your Baker McKenzie employment lawyer.

This post originally appeared in Baker McKenzie’s employment blog, The Employer Report.


Miriam Petrillo is a partner in Baker McKenzie's Chicago office. She primarily practices in the field of employment and labor relations law.