Recent decisions from the Massachusetts Supreme Judicial Court and a Rhode Island Superior Court have held that a discharged employee and a rejected applicant, both of whom tested positive for marijuana, may pursue disability discrimination claims under state law. These are among the first decisions issued that address whether employers have a state law obligation to reasonably accommodate the medical marijuana use of their disabled employees and applicants.

Because marijuana use – whether for medicinal or recreational purposes – remains unlawful under federal law, employers have no obligation under the Americans with Disabilities Act to reasonably accommodate its use by disabled employees or applicants. But what about in states, including Ohio, where medicinal marijuana use is legal under certain circumstances? Is there an obligation to reasonably accommodate marijuana use under state disability discrimination law? Is an employer that takes an adverse action against an applicant or employee who is a medical marijuana user engaging in disability discrimination in violation of state law? It appears that the answer to these questions, at least in Massachusetts and Rhode Island, is yes. For the reasons discussed below, Ohio may be different.

The Massachusetts case

In the case decided by Massachusetts’ highest court, an employee used marijuana a few times a week after work (never immediately before or during) to manage the symptoms of Crohn’s disease. She failed a routine drug test, and her employer terminated her employment. While the use of medical marijuana is legal under Massachusetts state law, the law does not expressly provide any employment protections for users. But, it also does not expressly require that employers reasonably accommodate disabled users. Nevertheless, in response to her state disability discrimination claim, the court found that the law’s language prohibiting lawful users from being “denied any right or privilege” requires that employees not be denied the right to seek a reasonable accommodation. Because, in Massachusetts, the use of medically prescribed marijuana is as legal as the use of any other prescription drug, its lawful use away from work is a reasonable accommodation for a disability absent some showing of undue hardship. The employee did not use marijuana at work, she was not impaired while at work, and she did not have a safety-sensitive job, so her employer was unable to establish any undue hardship.

The Rhode Island case

In the case decided by a Rhode Island trial court, an applicant disclosed to her potential employer that she used medical marijuana and would test positive for it in a pre-employment screen. The employer refused to hire her. The court refused to grant the employer’s motion for summary judgment on the applicant’s disability discrimination claim because, the court found, the applicant might be able to prove that the employer discriminated against her on the basis of her disability. To qualify as a medical marijuana cardholder under Rhode Island law, the applicant must have a “debilitating medical condition.” Because she told her potential employer that she was a medical marijuana cardholder, the employer would have known that she had a debilitating medical condition, could have inferred that she was disabled as a result, and could have refused to hire her on that basis. In addition, the court rejected arguments from the employer that her marijuana use prevented her from being a “qualified individual” with a disability under state law and that the federal Controlled Substances Act preempts the state’s medical marijuana law. As a result, the court rejected the employer’s motion for summary judgment and allowed the case to go to trial.

What does this mean for Ohio employers?

Ohio employers should not panic about these new decisions. Not yet, at least. Ohio’s medical marijuana law is much different than those of Massachusetts and Rhode Island because it specifically provides that employers are not required to accommodate an employee’s use of medical marijuana, that employers may take an adverse action against an applicant or employee because of his or her medical marijuana use, and that employees cannot sue an employer for an adverse employment action taken because of the medical marijuana use.

However, just as in Rhode Island, medical marijuana is lawfully available in Ohio only to those who are afflicted with one or more of the approximately twenty conditions listed in the statute. All of these conditions, which include cancer, multiple sclerosis and Tourette’s syndrome, are almost certainly disabilities under Ohio law. Therefore, if an employer learns that an applicant or employee has a medical marijuana card, they also learn that the employee is disabled. As did the rejected applicant in the Rhode Island case, an Ohio applicant or employee could argue that the reason for the adverse employment action was not the use of medical marijuana, but, rather, the fact that the applicant or employee is disabled.

Both of these new cases, and the Rhode Island case in particular, reinforce the importance of establishing and consistently enforcing a drug-free workplace policy. If an employer has a policy prohibiting the unlawful use of controlled substances and the lawful use of marijuana, and if the employer enforces the policy, an employee or applicant will have an uphill battle proving that the real reason for the adverse action taken against them was the disability rather than the marijuana use.