New Mexico Federal Court Says Employers Have No Duty to Accommodate Medical Marijuana

by Erica E. Flores

It has been more than three years since Massachusetts’ medical marijuana law went into effect, but as dispensaries continue to open across the state (there are now six), the practical implications of the law for the workplace remain unexamined by Massachusetts courts.  And even though the statute specifically states that it does not require “any accommodation of any on-site medical use of marijuana in any place of employment” or “the violation of federal law,” employers have every right to be nervous.  To be sure, neither the statute nor the regulations adopted by the Department of Public Health specifically immunize employers from civil liability arising out of employment decisions associated with the use of medical marijuana by their employees, and the fact that they do not require employers to accommodate medical marijuana use does not mean other laws do not.

As a result, important questions remain unanswered; specifically, do Massachusetts employers have a legal obligation to tolerate employee use of medical marijuana under Chapter 151B of the Massachusetts General Laws? And if they do, under what circumstances?  But until a state court or the Massachusetts Commission Against Discrimination has an opportunity to consider these questions, employers can find useful guidance in decisions issued by courts in other states.  One such decision was recently handed down by a federal court in New Mexico and although it rests on an interpretation of New Mexico law, the decision is the latest in a series of victories for employers who have refused to tolerate the use of medical marijuana by their employees.

Rojerio Garcia has HIV/AIDS, a condition that qualifies as a “serious medical condition” under New Mexico’s Human Rights Act.  His healthcare providers recommended that he use medical marijuana to treat his condition, and he was subsequently accepted into the New Mexico Medical Cannabis Program.  After he had started using medical marijuana, Mr. Garcia applied for a management-level position at Tractor Supply Company, a nationwide chain of retail stores.  During his initial interview, he disclosed to the store manager his HIV/AIDS status and the fact that he used medical marijuana, and the manager hired him anyway, but when he failed the pre-employment drug test, the same manager immediately terminated his employment.

Mr. Garcia challenged Tractor Supply’s decision in the New Mexico Human Rights Division without success and ultimately filed suit in state court, claiming that he was terminated on the basis of his medical condition and his physician’s recommended treatment.   After moving the case to federal court, Tractor Supply filed a motion asking the court to dismiss the case on the grounds that Mr. Garcia had no right to relief under New Mexico law.  First, Tractor Supply pointed out that the New Mexico medical marijuana law provides users only a limited immunity from prosecution under the state’s criminal laws, and does not also require employers to accommodate their use of the drug.  Second, Tractor Supply argued that, even if the law could be interpreted to impose such a duty on employers, it would be preempted by the federal Controlled Substances Act, which still prohibits the use of marijuana for any purpose.  The Court agreed with Tractor Supply on both points, and granted the motion.

Relying on opinions issued by federal judges in Colorado, the Court concluded that Mr. Garcia had no claim for wrongful termination under the New Mexico Human Rights Act because being terminated for violating a workplace drug policy is not the same thing as being terminated on the basis of a disability, even if the policy violation is related to the disability.  As the Court explained, “[t]esting positive for marijuana was not because of Mr. Garcia’s serious medical condition (HIV/AIDS), nor could testing positive for marijuana be seen as conduct that resulted from his serious medical condition [because] [u]sing marijuana is not a manifestation of HIV/AIDS.”

The Court further concluded that the duty of employers to accommodate employee disabilities under the Human Rights Act does not extend to the use of drugs that are illegal under federal law.  According to the Court, the fact that the state’s workers’ compensation law has been interpreted to require reimbursement for approved medical marijuana was irrelevant to the obligations of employers vis-à-vis their employees in the workplace.  And, finally, any interpretation of New Mexico law requiring employers to accommodate the use of marijuana was preempted by the Controlled Substances Act regardless of the circumstances because it would require employers to permit the very conduct that federal law specifically forbids.

As noted above, it remains an open question in Massachusetts whether an employment decision arising out of an employee’s use of medical marijuana could form the basis for a handicap discrimination or failure to accommodate claim under Chapter 151B.  After the Garcia decision, Massachusetts employers facing this issue can feel a bit more comfortable about their options, but until the state courts and administrative agencies give employers more guidance, employers should approach these questions with care, keeping in mind that Massachusetts law is typically construed broadly in favor of employees, and should consult their employment attorneys to make sure they are aware of the latest developments in this rapidly developing field of law.

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