In one of the first “employee friendly” decisions on this issue, a Rhode Island state court granted summary judgment to a plaintiff job applicant who sued for employment discrimination on the basis of her medical marijuana use. After the plaintiff disclosed as part of the application process that she was a medical marijuana user and would not pass the required pre-employment drug test, the company did not hire her and she filed suit. The case is Callaghan v. Darlington Fabrics Corp.

The trial court made several important holdings that could guide other courts examining this issue:

1. The court first held that Rhode Island’s medical marijuana law, the Hawkins-Slater Act, did provide a private right of action for individuals licensed under the Act, although the Act does not specifically provide for a private cause of action. The court reasoned that, without implying a right of action, the provisions protecting users of medical marijuana would have no effect.
2. The court held that Rhode Island state law was not preempted by federal law, which prohibits the possession and use of marijuana. In doing so, the Court referenced legislation by Congress which prohibits the Department of Justice from using funds to prevent states from, “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” (Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537).
3. The Hawkins-Slater Act prohibits an employer from taking an adverse employment action against an employee, “solely for…her status as a cardholder.” In examining the facts, the court found that the employer’s stated reason for refusing to hire–that the plaintiff could not pass a drug test–constituted a violation of this provision.
4. Lastly, the Court found that the employer’s action constituted a violation of the Rhode Island Civil Rights Act, which prohibits (among other things) disability discrimination.

The decision has since been appealed by the employer, and employment litigators like myself will be eager to see how the Rhode Island Supreme Court views these issues. While this decision is one of the first to find that federal law is preempted and potentially allowing medical marijuana use by employees, all employers should take lessons from this decision.

First, employers should examine their hiring and adverse action decisions to ensure they have a basis other than an employee’s status as a lawful user of cannabis in their state. Next, in considering the ADA and similar state laws, employers should ensure that it ties its decision to the hardship in accommodating the employee, the employee’s inability to complete the job due to their condition, and/or a decline in the employee’s performance. It would also be wise to engage in an initial interactive process with the employee to determine whether it is feasible to make accommodations for the employee to lawfully use cannabis away from the workplace and still perform their job duties.

As more and more states (including my home state, Pennsylvania) implement medical marijuana programs, employers will be faced these difficult decisions and should look to their counselors and the approaches of other states to determine best approach.

Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.