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Massachusetts Court Protects Medical Marijuana Use by Employees

Posted On: August 9, 2017 by Marc Neff

Massachusetts’ highest court ruled that employers cannot fire employees who have a prescription to use medical marijuana with the sole reason being the employee’s use of the drug. The case arose from the firing of a prescribed patient of medical marijuana testing positive for marijuana on a company drug test. She had just been hired and made the company aware of her medical marijuana use, which the company had said should not be an issue. However, during her second day at the job she was fired for the failed drug test.

The employee sought a legal remedy, eventually being heard on appeal by the Supreme Judicial Court in Massachusetts. The Court found that the employee did not have an implied statutory cause of action under the medical marijuana act, but could seek a civil remedy against her employer through claims of handicap discrimination. Massachusetts handicap discrimination law provides that it is “unlawful practice . . . [f]or any employer . . . to dismiss from employment or refuse to hire . . . , because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.”

The employer argued the firing was justified because marijuana is illegal under federal law and allowing the employee to smoke marijuana, even during non-working hours exceeded the “reasonable accommodation” requirement in the handicap discrimination law. The Court responded by stating the only person at risk of federal criminal prosecution for possession of marijuana is the employee, not the employer.

The Court recognized the use and possession of medical marijuana is the same as the possession and use of any other prescribed medicine under Massachusetts law. The Court found it akin to telling a diabetic that their use of insulin was a violation of company policy.

If the employer can demonstrate that making the accommodation would create an undue hardship for the company then the employee could effectively be denied employment solely because of their use of medical marijuana. However, when this case is heard in trial court it is unlikely an undue hardship will be found. The only accommodation is to allow the employee to use medical marijuana outside of work hours.

What is deemed an undue hardship will be determined on a case-to-case basis. This is a win for medical marijuana users in Massachusetts, however, how the courts will determine what is considered an undue hardship in these types of cases is yet to be seen.

For more than thirty years, the Law Offices of Marc Neff has been defending the rights of individuals and corporations facing serious criminal charges. Throughout Pennsylvania, New Jersey, and elsewhere, Mr. Neff has successfully defended clients charged with white-collar crimes such as mail fraud and bank fraud, RICO, drug distribution, money laundering, sex crimes and other serious offenses.

If you have been charged with a crime or believe your rights may have been violated, please contact the Law Offices of Marc Neff for a confidential consultation: 215-563-9800 or via email at

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Posted in: Drug Crimes, Uncategorized