By: Stephanie Smith and Carmen F. Francella III
On Monday, July 17, 2017, in a unanimous and ground-breaking decision, the Massachusetts Supreme Judicial Court (SJC) ruled that an employer could potentially be held liable under Massachusetts’s anti-discrimination law, G.L. c. 151B, for failing to hire or terminating a qualified handicapped individual based on their off-site medical marijuana use. As a result of this decision, Massachusetts employers, even those with drug-free workplace policies, must accommodate handicapped employees’ off-site medical marijuana use, unless doing so would cause an “undue hardship.”
The plaintiff in Barbuto v. Advantage Sales and Marketing, LLC. had been prescribed marijuana (consistent with Massachusetts law) to treat her Crohn’s disease and irritable bowel syndrome. After she accepted an offer for an entry-level position with Advantage Sales and Marketing (ASM), an ASM representative told Barbuto that she was required to take a mandatory drug test. She informed ASM that she would test positive for marijuana and was initially reassured that this would not be an issue. However, when she later tested positive for marijuana and failed the test, ASM ended her employment, telling Barbuto that ASM “follow[s] federal law, not state law.”
In her complaint, Barbuto argued, among other things, that ASM’s termination for failing the drug test (1) amounted to handicap discrimination under G.L. c.151B; (2) violated the Massachusetts’ Medical Marijuana Act (“Act”); and (3) was a wrongful discharge in violation of public policy. She also argued that ASM’s drug test was an invasion of her privacy under state law. The lower court judge granted ASM’s motion to dismiss all of Barbuto’s claims, except for the invasion of privacy claim. Before the SJC, ASM argued that it need not accommodate Barbuto’s marijuana use because marijuana use is a federal crime and therefore, Barbuto’s requested accommodation was per se unreasonable. ASM also argued that it had not terminated Barbuto due to her handicap but because she failed a drug test that all employees must undergo.
The SJC rejected both arguments. First, the SJC held that employers with drug-free policies prohibiting marijuana use, even where lawfully prescribed, must engage in an interactive process with a qualified handicapped employee and identify potential reasonable accommodations. The SJC rejected ASM’s contention that allowing medical marijuana use was per se unreasonable because marijuana is illegal under federal law. Such a finding would contravene the desires of Massachusetts voters in passing the Medical Marijuana Act, and, in any event, “[t]he only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee.” The Court also found that ASM’s strict application of its drug test policy denied Barbuto the opportunity of a reasonable accommodation, in violation of c. 151B. The Court remanded the case to the lower court to determine whether allowing the accommodation of Barbuto’s medical marijuana would have posed an undue hardship to ASM.
After Barbuto, if there is no effective alternative to marijuana (as determined by the employee’s physician), an employer must consider granting an exception to its drug-free policyand accommodating the employee’s off-site medical marijuana use, unless allowing such use would create an undue hardship. For example, the SJC recognized that undue hardship may exist if the employer can show that medical marijuana use would impair the employee’s work performance or pose “an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees.” The SJC also found that an undue hardship might be shown if accommodating employee marijuana use would violate a contractual or statutory obligation (citing Department of Transportation regulations and the federal Drug Free Workplace Act, both of which prohibit marijuana use).
Although it reversed the dismissal of Barbuto’s handicap discrimination claim, the SJC dismissed the other claims under the Medical Marijuana Act and for violation of public policy.
IMPACT OF BARBUTO
In light of Barbuto, Massachusetts employers must revise their hiring, drug testing, and workplace policies and procedures if they prohibit medical marijuana use. Employers should also train HR personnel to recognize their obligation to consider whether a request for off-site use of medical marijuana (and exception to a drug testing policy) can be reasonably accommodated. If it cannot be accommodated, employers must engage in the interactive process to determine if another accommodation (e.g., another medication or other workplace accommodations) would allow the employee to perform his/her essential job functions.
Although the SJC stated that its ruling did not require employers to accommodate on-site medical marijuana use, the Act does not define the term, and it is unclear whether this exception is limited to an employer’s immediate work premises. The plaintiff in Barbuto assured ASM that she would not use marijuana during the regular workday. However, the Court’s opinion does not necessarily foreclose an employee from having medical marijuana in his or her system during work hours if it does not impair performance, create a safety issue, or otherwise pose a special undue hardship. The conservative approach would be for employers to treat medical marijuana as any other prescription medication and consult with employment counsel if they suspect any employee of being impaired at work.
Small employers with fewer than six employees are not covered by c. 151B; such employers therefore do not expressly fall within the ambit of Barbuto. That being said, an employee of such a small employer could try to argue that the Massachusetts Equal Rights Act, which applies to all employers, protects her from handicap discrimination and requires a similar accommodation. Therefore, smaller employers should also consider whether they can reasonably accommodate a handicapped employee’s medical marijuana use.
Finally, in ruling that handicapped employees were protected under the state’s anti-discrimination laws, the SJC expressly relied on the language in the Medical Marijuana Act, which provides that any individual covered by the law shall not be “denied any right or privilege.” In doing so, the SJC distinguished other state laws that do not have this language. Although the SJC might have attempted to limit the reach of Barbuto, plaintiffs in other jurisdictions are sure to rely on this ground-breaking decision. Multi-state employers should evaluate their obligations on a state-by-state basis.
 The SJC noted that nearly 90% of States, as well as Puerto Rico and the District of Columbia, allow the limited possession of marijuana for medical treatment.