In a landmark decision that is likely to influence other states, a recent ruling in Massachusetts protects medical marijuana users against discrimination by their employers absent undue hardship.
In Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court (SJC) held that an employee who uses medical marijuana may claim handicap discrimination against an employer for failing to waive mandatory drug testing for marijuana use absent an undue hardship to the employer’s business. The SJC was not troubled by the fact that the employee’s possession of marijuana is a violation of federal law. The court also made clear that where an employee alleges that a reasonable accommodation would enable the employee to perform the job, an employer’s failure to consider the proposed accommodation can itself violate the law. This LawFlash describes the legal backdrop of the case and the ruling, and identifies key implications for employers.
In 2012, Massachusetts voters approved an initiative petition, “An Act for the Humanitarian Medical Use of Marijuana” (the Medical Marijuana Act), decriminalizing the use of medical marijuana by qualifying patients. The Medical Marijuana Act protects a “qualifying patient” suffering from a “debilitating medical condition” from “arrest or prosecution, or civil penalty, for the medical use of marijuana.” The Medical Marijuana Act also provides that “[a]ny 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.”
Consistent with state laws across the country, Massachusetts law protects individuals from adverse employment actions on the basis of handicap. Specifically, an employer may not dismiss from employment or refuse to hire “any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation” unless the accommodation would impose an undue hardship on the employer’s business.
In 2014, Advantage Sales and Marketing (ASM) offered an entry-level position to Cristina Barbuto. As part of the offer of employment, ASM required Barbuto to submit to a mandatory drug test. Barbuto explained to ASM that she suffers from Crohn’s disease, for which she has a medical marijuana prescription from her physician, and that she would test positive for marijuana if tested. After initially assuring her a positive test result would not be a problem, ASM terminated Barbuto following her first day of work for testing positive for marijuana, explaining that the company “follow[s] federal law, not state law.”
The SJC determined that ASM was required to participate in the interactive process of determining whether there was a reasonable accommodation for Barbuto’s prescription marijuana use. As a basis for its decision, the court looked to the language of the Medical Marijuana Act, which provides that patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. The SJC noted that a handicapped employee in Massachusetts has a statutory “right or privilege” to a reasonable accommodation under Massachusetts General Law Chapter 151B, Section 4. Where an employer’s policy prohibiting the use of marijuana is applied to an employee who is being treated with marijuana for a medical condition, “the termination of the employee for violating that policy effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination.”
Further, the court held that the employer’s failure to participate in the interactive process alone gave rise to a claim for disability discrimination where the employee alleged ASM could have reasonably accommodated her by waiving the no-marijuana policy. The SJC drew an analogy to a scenario where an employer had a drug policy prohibiting the use of some other medication lawfully prescribed by a physician. In that instance, the employer would still have a duty to engage in an interactive process with the employee to determine whether there were an equally effective medical alternative to the prescribed medication, the use of which would not be in violation of the employer’s policy.
Per the SJC, the fact that the possession of medical marijuana is a violation of federal law is not a defense and does not make it per se unreasonable as an accommodation; the court noted that many states have enacted laws permitting the use of medical marijuana and that only the employee, not the employer, would be at risk of federal criminal prosecution.
No doubt aware that its decision would require employers to reassess their programs and policies, the court outlined potentially viable “undue hardship” defenses for employers in medical marijuana cases, offering the following examples:
The SJC’s decision in Barbuto has significant implications for employers with mandatory drug testing and other drug and alcohol policies. If an employee who uses medical marijuana asks an employer to waive its policy prohibiting marijuana use, the employer should at minimum engage the employee in—and document—an interactive process to determine whether a reasonable accommodation would be possible or would create an undue hardship for the employer’s business.
An employer may still avoid having to provide the requested reasonable accommodation if it can prove that it would cause an undue hardship on the employer’s business interests, such as interference with compliance with a statutory obligation, or if continued use would pose an “unacceptably significant” safety risk. The SJC also noted that the Medical Marijuana Act does not require any employer to permit on-site marijuana use as an accommodation to an employee.
Although the SJC’s ruling applies only to employers governed by Massachusetts law, courts in other jurisdictions with medical marijuana laws that protect employees’ “rights or privileges” may look to the Barbuto decision for guidance. Maine, New York, Minnesota, and Rhode Island each have marijuana laws that protect a qualifying patient’s rights or privileges.
Beyond the marijuana issue, Barbuto makes clear that it is necessary for an employer to engage in and document an interactive process to determine whether a reasonable accommodation exists whenever an employee indicates that he or she has a disability and needs an accommodation.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
David A. McManus
 Barbuto v. Advantage Sales and Mktg., LLC, SJC-12226, 2017 WL 3015716, at *1 (Mass. July 17, 2017).
 2012 Mass. Acts ch. 369.
 Id. at § 4.
 Mass. Gen. Laws ch. 151B, § 4(16) (2016).
 Barbuto, 2017 WL 3015716, at *7.
 Id. at *7 n.10.
 Me. Rev. Stat. tit. 22, § 2423-E (1) (2016).
 N.Y. Pub. Health Law § 3369(1) (McKinney 2014).
 Minn. Stat. §§ 152.22 et seq. (2016).
 R.I. Gen. Laws 1952 § 21-28.6-4(a) (2017).