While 33 states have legalized medical marijuana, the drug remains illegal under the Controlled Substances Act (CSA). Under the CSA, the possession, distribution, manufacture, and sale of marijuana are illegal. As the number of states with medical marijuana laws has grown, courts are forced to reckon with questions around conflicting state and federal laws. Medical marijuana laws vary by state, and only some states include explicit employment protections for the use of medical marijuana. In many states, it remains unclear what protections, if any, workers have for the use of medical marijuana.
In a number of cases, employees have challenged adverse employment actions that were taken against them based on their use of medical marijuana. For many years, these cases were largely unsuccessful, and despite the fact that employees had medical prescriptions for marijuana, employers were allowed to choose not to hire or to terminate their employment on the basis of the disclosure of medical marijuana use or positive drug tests. Since 2017, however, a growing number of courts have held that users of medical marijuana who have suffered from adverse employment actions may have valid claims under the state’s medical marijuana laws or under state disability discrimination statutes.
All state marijuana laws face the question of whether the laws are preempted by federal law. Section 903 of the CSA states that it only preempts state law where “there is a positive conflict between” the CSA and the state law such that “the two cannot consistently stand together.” Courts have diverged on whether the CSA preempts state medical marijuana laws, largely basing their analysis in the text of the state statutes.
For example, in Emerald Steel Fabricators, Inc. v. Bureau of Labor, the Oregon Supreme Court held that under Oregon’s employment discrimination statute, an employer does not have a duty to accommodate an employee’s use of medical marijuana to treat a medical issue, as the CSA preempts the Oregon Medical Marijuana Act (OMMA). Oregon’s employment discrimination statute provides that protections “do not apply to any . . . employee who is currently engaging in the illegal use of drugs if the employer takes action based on that conduct.” While the court explained that the OMMA “brings the use of marijuana for medical purposes within one of the exclusions from the ‘illegal use of drugs,’” they ultimately held that the CSA preempts the OMMA because it “stands as an obstacle to the accomplishment of the full purposes of the [CSA].” Therefore, the employee was using an illegal drug under the employment discrimination statute.
Alternatively, in Callaghan v. Darlington Fabrics Corp., the Rhode Island Supreme Court found that the stated purpose of the CSA, to curb the illegal import, manufacture, distribution and use of controlled substances, is “quite distant from the realm of employment and anti-discrimination law.” The court explained that interpreting the CSA as preempting Rhode Island’s medical marijuana or employment discrimination laws “would imply that anyone who employs someone that violates federal law is thereby frustrating the purpose of that law.”
Ultimately, the question of preemption has not yet been settled, and will likely progress on a state by state basis, analyzing the text of each individual statute.
Private Rights of Action
Courts in Washington, Michigan, Maine, and Montana have found that their medical marijuana statutes do not create employment protections in the absence of specific statutory provisions that speak to the issue of employment discrimination. In each of these cases, the courts failed to find that the state medical marijuana laws implied a private right of action for employees.
In the past two years, however, courts in Rhode Island, Connecticut, and Delaware have read private causes of action into their medical marijuana laws. These cases can be distinguished from previous cases as each of these states has included an anti-discrimination provision in their statute that has allowed the court to imply the private right of action. In Callaghan v. Darlington Fabrics Corp., the Rhode Island Supreme Court held that the Rhode Island Medical Marijuana Act, which states “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder,” implies a private right of action. The court determined that in the absence of a private right of action, the statute could not be enforced and employees would not have any recourse for discrimination under this law.
Similarly, the Connecticut District Court held that the Connecticut Palliative Use of Marijuana Act, which prohibits employment discrimination based on use of medical marijuana, creates a private right of action, and a Delaware state court held that the state medical marijuana law contained a private right of action to enforce the law’s anti-discrimination provision, stating the law would be “devoid of any purpose” without this right.
Disability Discrimination Claims
On the federal level, the Americans with Disabilities Act prohibits discrimination based on disability and requires employers to provide reasonable accommodations to employees with disabilities. In 2012, the 9th Circuit held that medical marijuana use in accordance with state law is not protected by the ADA because the ADA lists marijuana as an illegal drug. While ADA claims are unlikely to prevail, many states have laws that require employers provide reasonable accommodations for employees with qualifying disabilities.
Prior to 2017, disability discrimination claims had been largely unsuccessful. In Emerald Steel, the Oregon Supreme Court held an employer does not have a duty to accommodate an employee’s use of medical marijuana to treat a medical issue, as the CSA preempted the state statute. Similarly, in Ross v. RagingWire Telecommunications, Inc., the California Supreme Court held that medical marijuana use was not protected under the state disability discrimination law as the law does not require employers to accommodate the use of drugs that are illegal under the federal definition.
More recently, however, Rhode Island and Massachusetts have held that their state disability discrimination statutes do protect the use of medical marijuana. In Callaghan, the Rhode Island Supreme Court held that use of medical marijuana could be protected under the Rhode Island Civil Rights Act, which prohibits discrimination based on disability. In Barbuto v. Advantage Sales & Marketing, the Massachusetts Supreme Judicial Court rejected an employer’s argument that marijuana was different from other prescription drugs, holding that medical marijuana may be a reasonable accommodation for the employee’s disability. The court did not reach the question of preemption, but did state that the possible violation of federal law does not make it per se unreasonable as an accommodation, as “[t]he only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee.”
This patchwork of conflicting laws and rulings has made the landscape around medical marijuana and employment highly unpredictable. So far, explicit state protections for workers who use medical marijuana have been upheld in some states, and states that want to protect users of medical marijuana from employment discrimination should consider adopting similar provisions in their statutes. Additionally, states should explicitly protect medical marijuana use as a reasonable accommodations for a disabilities. While marijuana use remains illegal under the CSA, these provisions can potentially provide protections for patients and workers who make use of medical marijuana under their states’ laws.