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Don't HR Alone #42 - Service Animals, and Medical Marijuana Terminations

Service Dog

Question: Our employee is a military veteran and was approved by his doctor to have a service dog with him at all times. He performs pest control for restaurants, and we are concerned the dog will not be allowed in the restaurants. Do we have to accommodate this request? Answer:

Yes, you would need to accommodate the request for your employee to have a service dog with him at work. The federal Americans with Disabilities Act (ADA) prohibits restaurants from excluding service dogs from their premises. Therefore, if your employee enters a restaurant or other food service location, the service dog must be permitted entrance as well. The ADA also states that service dogs may not be prohibited from communal food preparation areas.

Individuals with disabilities may not be refused access to a facility based on having a service dog and/or based on the breed of dog. Service dogs may be of any breed. The ADA provides an example of when a service dog may be off leash, which may be applicable to your scenario:

“The service animal must be harnessed, leashed, or tethered while in public places unless these devices interfere with the service animal’s work or the person’s disability prevents use of these devices. In that case, the person must use voice, signal, or other effective means to maintain control of the animal. For example, a returning veteran who has PTSD and has great difficulty entering unfamiliar spaces may have a dog that is trained to enter a space, check to see that no threats are there, and come back and signal that it is safe to enter. The dog must be off leash to do its job, but may be leashed at other times.”

Denying the use of the service dog would be difficult to defend and the accommodation of the use of the service dog should be permitted. You may need to explain to your clients that one of your techs will have a service dog with him, and that the dog must be allowed on premises; however, be sure to not disclose any type of medical or protected information regarding your employee.

Mass. Sup. Ct.: Fired medical marijuana user can sue for state law ‘handicap’ bias — STATE LAW

An employee who suffered from Crohn’s disease, a debilitating medical condition for which she had been allowed to use medical marijuana under Massachusetts law, and who was fired after she tested positive for marijuana under her employer’s policy, could advance state-law claims of handicap discrimination, the Massachusetts Supreme Judicial Court ruled. In the state high court’s view, the fact that possession of medical marijuana violates Federal law does not make it per se unreasonable as an accommodation because the risk of Federal prosecution belongs to the employee, not the employer. Nor did the court wish to disrespect the view of most state legislators and voters that marijuana has an accepted medical use. Though dismissal of her discrimination claims was reversed, the court found no implied private cause of action under the medical marijuana act and no reason to recognize a separate cause of action for public policy wrongful termination under these circumstances, so dismissal of those claims was affirmed (Barbuto v. Advantage Sales and Marketing, LLC, July 17, 2018, Gants, R.).

Fired after drug test. After being offered an entry-level position with a sales and marketing firm, ASM, the employee was required to take a mandatory drug test. She informed the ASM supervisor that she would test positive for marijuana explaining that she suffers from Crohn's disease, a debilitating gastrointestinal condition, for which her physician had ordered that she be allowed to use marijuana for medicinal purposes under Massachusetts law. She also said she did not use marijuana daily and would not consume it before work or at work. The supervisor confirmed that her lawful medical use of marijuana "would not be an issue."

After the employee took the drug test and completed a day of training plus her first day of work, ASM’s HR director called and fired her for testing positive for marijuana. The HR director allegedly said ASM did not care whether the employee used marijuana to treat her medical condition because "we follow federal law, not state law." After the employee filed suit and ASM unsuccessfully tried to remove the case to federal court, it moved to dismiss all her claims. The trial court granted the motion except for her invasion of privacy claim, which it stayed pending appeal. The Massachusetts Supreme Judicial Court took up the appeal.

Massachusetts medical marijuana law. Chapter 369, Section 4 of the state law authorizing medicinal marijuana specifically provides, "Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions." Despite the nearly 90 percent of states that allow at least some type of medical marijuana, it is still classified as a Schedule 1 controlled substance unlawful under federal law. Consequently, said the state supreme court, a qualifying patient in Massachusetts who has been lawfully prescribed marijuana remains potentially subject to Federal criminal prosecution for possessing the marijuana prescribed. "It is against this unusual backdrop that we review the judge's dismissal," the court began.

Disability discrimination. The complaint alleged that the employee is a "handicapped person" under state disability bias law because she suffers from Crohn's disease and that she is a "qualified handicapped person" because she is capable of performing the essential functions of her job with a reasonable accommodation—a waiver of ASM's policy barring anyone from employment who tests positive for marijuana. Given that Crohn's disease is characterized as a "debilitating medical condition" under the medical marijuana act, and the complaint’s allegation that, combined with irritable bowel syndrome, the employee had "little or no appetite" and had difficulty maintaining a healthy weight, the court found her allegations sufficient as to a physical impairment substantially limiting one or more major life activities.

A reasonable accommodation. Because the prescribed medication was marijuana, which is illegal under Federal law, the employer argued that an accommodation to permit the employee to continue medical marijuana treatment "is per se unreasonable." It also argued that with such a facially unreasonable accommodation, ASM owed the employee "no obligation to participate in the interactive process to identify a reasonable accommodation" before it fired her. But the court was not persuaded.

Not facially unreasonable. In Massachusetts law, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. In such a case, where any alternative medication that would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit marijuana use is a facially reasonable accommodation, concluded the court, basing its reasoning on the medical marijuana act’s language that patients shall not be denied "any right or privilege" on the basis of their medical marijuana use. Disabled or handicapped employees have a state statutory "right or privilege" to reasonable accommodation.

To find that allowing an employee's use of medical marijuana is a facially unreasonable accommodation would deny that employee this "right or privilege" solely because of the patient's use of medical marijuana.

Off-site use might be an accommodation. Further, as the medical marijuana act specifically does not require "any accommodation of any on-site medical use of marijuana in any place of employment," the court reasoned that the act implicitly recognizes that the off-site medical use of marijuana might be a permissible "accommodation," which is a disability-related term of art.

Federal criminalization. That an employee's possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation, continued the court, since the risk of Federal criminal prosecution belongs to the employee, not the employer. Nor was the state high court going to cede public policy to the federal government’s anti-medical marijuana stance, saying to do so "would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions."

Interactive process. Regardless of the reasonableness of the requested accommodation, the employer here had an obligation under the state handicap discrimination law, before it fired her, to participate in the interactive process to determine whether there was an alternative, equally effective medication she could use that was not prohibited by the employer's drug policy. This "failure to explore a reasonable accommodation alone" was enough to support her handicap discrimination claim, assuming the employee could show that a reasonable accommodation existed that would have enabled her to be a "qualified handicapped person."

Violation of company policy. ASM also argued that it had fired the employee not because of her disability but because of its policy that prohibited the use of marijuana. But the court found "the law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap." Using that logic, a company could ban insulin or other diabetes drugs and claim it was not discriminating against diabetics because of their handicap but simply "implementing a company policy." Terminating an employee who was legally being treated with medical marijuana by a licensed physician and claiming it was only following company policy "effectively denies a handicapped employee the opportunity of a reasonable

accommodation, and therefore is appropriately recognized as handicap discrimination," the court concluded.

Undue hardship defense. Although it reversed the dismissal of the counts alleging handicap discrimination (including counts against the HR director for aiding and abetting, and interfering with the employee’s right to be free from discrimination), the court was careful to note this did not necessarily mean that the employee would prevail in proving handicap discrimination, explaining how an employer might show an undue hardship for safety reasons, contractual or statutory obligations, or possibly as a recipient of a Federal grant. But that was not appropriate to determine motion to dismiss.

No private right of action or wrongful termination claim. The court also held that the Massachusetts medical marijuana act did not imply a private right of action, especially as it had found that disabled employees were already provided a remedy under state discrimination law. For similar reasons, the court found no reason to recognize a separate cause of action for wrongful termination based on the violation of public policy arising from handicap discrimination under these circumstances, and it affirmed the dismissal of those claims.

The case is No. SJC-12226.

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