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Today the Massachusetts Supreme Judicial Court ruled that a woman fired for using medical cannabis can sue her employer under a state handicap discrimination statute. This represents a great victory not only for the medical cannabis patients in Massachusetts, but for patients everywhere who have faced discrimination for far too long.
The case began in 2014, when a woman suffering from Crohn’s Disease was hired by a sales and marketing company. During her initial interview, she was told that she would have to take a drug test, which was standard practice for all employees. She informed the employer that she was a medical cannabis patient and used medical cannabis with a doctor’s recommendation. The woman was complying with Massachusetts state law on all counts, and was told by a supervisor that her use of medical cannabis would not be a problem. However, after working only one day the woman was contacted by the company’s human resources department and was informed that she was being fired for failing the drug test.
In Massachusetts, it is unlawful for an employer to fire any “qualified handicapped person” (i.e. someone who is capable of performing the essential job functions despite their illness or condition) from a position if the employer can provide reasonable accommodation. If the employer can only provide an accommodation to the employee at an undue hardship to the employer, then no accommodation needs to be made.
In this case, the employer tried to argue that allowing an employee to use medical cannabis was not a reasonable accommodation because it remains illegal under federal law. However, medical cannabis, under Massachusetts state law, is treated as any other medication. Additionally, Massachusetts patients can not be denied any right or privilege because of their status as a patient, and in Massachusetts, a handicapped employee has a statutory “right or privilege” to reasonable accommodation to disabilities in the workplace.
The court held that “the company's policy prohibiting any use of marijuana is applied against a handicapped employee who is being treated with marijuana by a licensed physician for her medical condition, the termination of the employee for violating that policy effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination.” However, this does not mean necessarily that the employee will prevail in proving her handicap discrimination case, merely that she is allowed to bring one.
Allowing the use of medical cannabis outside of work hours is a reasonable accommodation. More importantly, allowing an employee’s use of medical cannabis is not an unreasonable accommodation merely because it violates federal law. It is the employee who is taking a risk to access their medicine, not an employer. A company would not be allowed to bar a diabetic employee from using their insulin, and the same should ring true for any type of medicine, including medical cannabis.
You can read the full Court opinion here.