Is the U.S. workplace going to pot?

Across the U.S., companies with drug-free workplace policies face a growing dilemma: how to handle employee use of medical marijuana/ pot. It’s been an issue for awhile now, but recently gained further prominence as the result of a recent ruling by the Massachusetts Supreme Judicial Court.

In the ruling, which considered whether firing an employee for medical marijuana use violated the state’s anti-discrimination laws for the disabled, the court said that it did. It also said that employers could be required to allow disabled workers to use medical marijuana during non-work hours, as it is just as legal as other medications.

Hailed as a “historic victory” by advocates of medical marijuana use, and potentially far-reaching by the legal community, the decision establishes a precedent for other states that allow the medical use of marijuana. As of March 2017, according to Congressional Research Service, this included nearly 90 percent of U.S. states, as well as Puerto Rico and the District of Columbia.

The ruling was the result of a suit filed on behalf of Cristina Barbuto, who had been asked to take a drug test after being hired in 2014 for a marketing position at Advantage Sales & Marketing. Although Barbuto disclosed her medical marijuana use and said she would fail the drug test as a result, she was encouraged to take it anyway.

Then, when she failed the test, she was fired.

While Barbuto had stated that marijuana use wouldn’t affect her ability to perform her job, as she didn’t use it before or during work hours, her employer had argued that it should not be required to accommodate this, as all marijuana use violates federal law.

So what does this mean for employers in Massachusetts? Or any other state that may be impacted by this ruling? The jury is still out, so to speak, but the consensus suggests that employers who are unsure of what to do should tread carefully and seek legal advice. Some also advocate reviewing drug policies around medical marijuana use and revising if needed, and considering individual circumstances and job duties when enforcing policies.

Lastly, in light of the fact that marijuana has largely been decriminalized in the U.S., some also say that employers with strict anti-drug policies may want to consider the impact of these policies on recruitment and retention. According to a 2016 Gallup poll, 13 percent of adults in the U.S. said they smoked marijuana, which is almost double the number who reported smoking it in 2013. Within this group, Millennials make up the largest percentage.

For more details, including key takeaways for employers, visit Ogletree Deakins’ Insights blog.

photo credit: Adam Nowak