Peering Into The Haze Of Medical Marijuana
PEERING INTO THE HAZE OF MEDICAL MARIJUANA
By Henry A. Goodman and Ellen A. Shapiro
As a result of reading and discussing two recent cases, one from Rhode Island and the other from Massachusetts, it occurred to us that condominium Boards need to educate themselves to the nuances of medical marijuana use not only by occupants but association vendors and service providers as well. Typically we are advising Boards about making reasonable accommodations as to the use of medical marijuana by unit owners and occupants. However, the issue can arise in other ways arising out of other people on the common area of the condominium. Think about the contractor doing a siding job and whose worker used medical marijuana off site? What if the Board reports to a vendor that the vendor’s employee appears to be under the influence of marijuana but the employer does not come to that conclusion? What about a lifeguard at the association’s pool? Does the Board need to make accommodations in those instances? Some guidance may be found in Callaghan v. Darlington Fabrics Corporation and the Moore Company (the “RI” case) a Rhode Island Superior Court decision, and in Barbuto v. Advantage Sales (the “MA” case) a Massachusetts Supreme Judicial Court decision. Both cases deal with an individual’s right to sue for employment discrimination based on possession of a medical marijuana card and use of marijuana while not on the job. Of interest (at least to us) is that the courts in both states, in analyzing their statutes and the similar legal issues in these cases, decided that there is a private right on the part of an individual to make a discrimination claim but for two different reasons. While it appears that these cases discuss employment discrimination arising out the use of medical marijuana it is not a long reach to see how they might be applied to potential problems in condominiums.
The RI case addresses the implication and applicability of the Rhode Island “Hawkins-Slater Act” permitting the use of medical marijuana. In Callaghan, the Plaintiff Callaghan had applied for an internship at a corporation which required drug testing as a condition pf employment. The woman disclosed that she had a medical marijuana card, was a current user of marijuana and would not pass the drug test. She also stated that she would not use it while working.
Rhode Island has a medical marijuana act, The Hawkins-Slater Act, which at Section 21-28.6-4(d), specifically states that ”no school, employer, or landlord may refuse to enroll, employ, lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” In Callaghan, the Defendant did not hire Ms. Callaghan after she voluntarily disclosed to them that she had a medical marijuana card and would not pass a pre-employment drug screening test. She then sued under the Hawkins-Slater Act, seeking a declaration that “the failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user [was] a violation of the” Hawkins-Slater Act, whether the failure to hire her was a violation of the Rhode Island Civil Rights Act (“RICRA”) and whether a violation of the Hawkins Slater Act constituted employment discrimination.
The Defendant argued that the Hawkins-Slater Act did not give an individual the right to sue, i.e. a private cause of action. The Court spent a great deal of time in discussing this but, at the end of its detailed analysis, concluded that the Act did in fact do so. Therefore, an individual who had been denied employment in violation of that section of the Act (as had happened in this case) would have no way to seek redress for the violation unless there was a private cause of action. Having resolved that issue the Court went on to discuss the defenses raised by the Defendant as to its actual violations of the Act.
Without going into each and every defense asserted by the Defendants, certain of them are interesting. Among the defenses was that Callaghan was rejected from employment not because she was a medical marijuana user but that the Act only afforded protection to cardholders, that the Act undermined an employer’s right to hire “at will employees”, that employment is neither a right nor a privilege which was being denied as a result of the possession of a medical marijuana card (the denial of which is prohibited under another section of the Act) and that if the Court ruled in favor of the Plaintiff employers would have to accommodate employees who arrived at work under the influence of medical marijuana ingested outside of their employment but which could impact their ability to use dangerous equipment or otherwise impact workplace safety. The Court made short shrift of these defenses and, as to the latter pointed out that the Act at Sec.21-28.607(a)(1) did not “permit [a]ny person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” The most important analysis undertaken by the Court was to determine the effect of the law if it was unenforceable because it did not provide for a private right to sue. The Court said that proper legal construction would be to make certain a law was passed that had some effect. Therefore, they inferred a right to sue even if not spelled out.
Compare this to the MA case which said that while the marijuana law passed by the voters had no private right of suit, one would not be inferred because there was a right to sue for discrimination in Chapter 151B, the anti-discrimination law. As a private remedy was provided although in a different statute the employee also could prevail on an employment discrimination claim based on possession of a medical marijuana card and use of medical marijuana outside of the work place.
It is also noteworthy that both Courts neatly sidestepped the employer’s argument that the Defendants’ actions in using drug drugs that were illegal under Federal law did not constitute a violation of the Rhode Island Civil Rights of Disabilities Act (“RICRPDA”) or Massachusetts Anti-Discrimination Law which prohibit discrimination in employment based on disability. The Rhode Island Defendant relied on the RICRPDA definition of “qualified individual” which precludes individual using illegal drugs from being deemed a “qualified individual” afforded protection against discrimination in employment. In a “gotcha” moment the Court in Callaghan said that RICRA does not include the term “qualified individual” and therefore someone using medical marijuana could make a claim for employment discrimination based on the violation of the Hawkins-Slater Act.
The Court in the MA case in stating that the Plaintiff was “handicapped” under the statutory definition glossed over the “qualified” issue and noted that in 1970,when the Federal act was passed, Congress had stated there was “no currently accepted medical use in the United States. “ Fast forward to 2017 when the Supreme Judicial Court in Barbuto compared that statement to the fact that over ninety (90%) percent of the states have some sort of medical marijuana law and that medical marijuana is therapeutic. The Court went on to say that merely “because it is illegal under federal law does not make it per se unreasonable as an accommodation”. (As an aside, Boards may wish to take note of this pronouncement which may come back to haunt them if they try to rely on federal law to prohibit smoking medical marijuana than make reasonable accommodations for unit occupants who do so.)
Given that there is currently no reliable test to determine “impairment” while under the influence of marijuana, how is an employer, whether a vendor or Board, going to determine if the employee’s performance of the task would be “negligent” or would any effort to fire that employee be met with a claim of violation of the Hawkins-Slater Act or G.L.c. 151B. Of course, the determination may be different depending on the type of work being performed. Both decisions make it clear that the mere possession of a medical marijuana card and use of medical marijuana off site prior to coming to work will not be sufficient to disqualify or terminate an employee from a job. While the RI case said that an employer need not make any accommodations to the work place, the MA case came at it from a different angle. In Barbuto the Court held that a request for an accommodation at the workplace may be made and considered if it “facially reasonable.” (The MA case was decided under the MA anti-discrimination statute which requires reasonable accommodations to be made for handicapped persons. The possessor of a medical marijuana card is a “handicapped person”) And of equal if not greater importance, do these cases indicate the beginning of a judicial trend in RI and MA to ignore federal law whenever a marijuana issue of any type arises and not just on these facts?
The takeaway from these decisions is that regardless of what state you are in, there are questions that will need to be asked and judgments made based on the facts of each situation. If you have any doubts or questions as to the applications of these judicial decisions to your set of facts feel free to contact us.
The full decisions can be read by clicking on the links below:
 Whether or not this accommodation may, upon presentation of evidence, may be determined to be hardship to the employer and thus unreasonable has not been decided.