Illanit Fischler.

As more states legalize marijuana for medical use, employers are asking themselves whether they need to hire or continue to employ those who have a prescription for marijuana and test positive for marijuana. Courts in at least six states where medical marijuana is legal have issued decisions upholding an employer’s right to enforce their zero tolerance policies. However, in 2017, courts in Rhode Island, Massachusetts and Connecticut ruled that employers may not discriminate against employees for using medical marijuana. These decisions may be the start of a trend among courts that recognize causes of action for employees who use medical marijuana.

Rhode Island

In Callaghan v. Darlington Fabrics, No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017), the Rhode Island Superior Court held that an employer could not refuse to hire a medical marijuana cardholder, even if the employee would not pass the employer’s mandatory pre-employment drug test. When Christine Callaghan applied for a paid internship, she disclosed that she had a medical marijuana prescription, and that she would not pass the employer’s drug test. The employer rescinded the job offer because Callaghan admitted that she could not comply with the company’s drug-free workplace policy.