In a decision last month, the Massachusetts Supreme Judicial Court (“SJC”) opened the door for potential claims under the state employment discrimination statute, Chapter 151B, by employees with disabilities who use marijuana for medical purposes.
In Barbuto v. Advantage Sales and Marketing, LLC, the SJC held that Chapter 151B may require an employer to permit off-duty, prescribed medical use of marijuana as an accommodation for an employee with a disability. The SJC’s ruling – which stands in contrast to those of most other state courts that have considered similar claims involving employees’ medical use of marijuana – is likely to have significant implications for Massachusetts employers that have previously prohibited all marijuana use by employees.
A majority of states, including Massachusetts, now have laws permitting the possession and use of marijuana for medical purposes. Under the Massachusetts statute (known as the “Act for the Humanitarian Medical Use of Marijuana”), a “qualifying patient” — meaning someone who has been “diagnosed by a licensed physician as having a debilitating medical condition” — may obtain a prescription for the medical use of marijuana. The statute specifies that a person may not be “denied any right or privilege for” obtaining such a prescription.
However, marijuana remains classified as a Schedule I Controlled Substance under federal law. Thus, even with a state-authorized prescription for medical use, the possession and use of marijuana remains a federal crime.
This conflict between federal and state marijuana laws was at the heart of the Barbuto case.
The plaintiff, Cristina Barbuto, accepted an entry-level position with Advantage Sales and Marketing (ASM), promoting the products of ASM’s clients at supermarkets. After accepting the job offer, Barbuto was informed that she would have to take a pre-employment drug test. Barbuto told her supervisor that she would test positive for marijuana, as she suffered from Crohn’s disease and irritable bowel syndrome, and her prescribed medical treatment was marijuana. She also indicated that she did not use marijuana daily and would not consume it before or at work.
In response, Barbuto’s supervisor told her that her lawful use of marijuana should not be an issue. Barbuto then submitted to the drug test. After Barbuto had completed training and her first day in the field, ASM’s Human Resources Department informed her that she was being terminated, effective immediately, for testing positive for marijuana use. By way of explanation for its decision, ASM told Barbuto that the company followed federal law, rather than state law, with regard to marijuana use.
Barbuto brought suit against ASM in state court, alleging various claims, including disability discrimination, wrongful termination in violation of public policy, violation of the state medical marijuana statute, and invasion of privacy. On motion by ASM, a Superior Court judge dismissed all of Barbuto’s claims, with the exception of the privacy claim, which was stayed pending her appeal from the dismissal of her other claims. Subsequently, the SJC granted a motion for direct appellate review, bypassing the state Appeals Court.
Reversing the Superior Court, the SJC held that when a disabled Massachusetts employee seeks permission to use marijuana off-duty in accordance with a medical prescription, the employer is obligated to consider and discuss with the employee – in what is known as an “interactive process” – whether such an accommodation can be reasonably provided. In the SJC’s words, “Where, in the opinion of [an] employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation” under Chapter 151B.
Thus, because ASM had refused even to consider accommodating Barbuto’s medical use of marijuana, the SJC reinstated her claim for disability discrimination, sending it back to the Superior Court for further consideration. (However, the SJC affirmed the lower court’s dismissal of Barbuto’s claims under Massachusetts’ medical marijuana statute and for wrongful termination, finding that the medical marijuana statute does not create a private right of action and that Chapter 151B preempted any wrongful-termination claim.)
The Court rejected ASM’s argument that Barbuto was not a “qualified handicapped person” because the specific accommodation she sought – to be allowed to use marijuana off-duty, in accordance with a doctor’s prescription – conflicted with federal law. Instead, the SJC focused on Massachusetts law, under which medical marijuana is as lawful as any other prescribed medication. Further, the Court observed that only Barbuto herself – and not ASM – faced any possibility of legal sanctions under federal law for her use of marijuana.
The SJC also cited the Massachusetts medical marijuana statute, which, as noted above, allows a qualified patient to obtain a prescription for marijuana and protects the individual from a denial of “any right or privilege” on the basis of his or her medical use of marijuana. The SJC found that this language further supported its conclusion that ASM had an obligation, under Chapter 151B, to explore the feasibility of permitting Barbuto to use marijuana off-duty as a reasonable accommodation for her disability.
Significantly, the SJC emphasized that there are some situations in which permitting an employee to use medical marijuana would be likely to create an “undue hardship” for the employer – for instance, if an employee’s job responsibilities are such that any use of marijuana would create “unacceptably significant safety risks,” or where an employer has a supervening statutory obligation not to allow marijuana use by employees (e.g., federally regulated commercial vehicle drivers). In such cases, a Massachusetts employer would not be obligated to consider permitting off-duty marijuana use as a reasonable accommodation.
Finally, it should be emphasized that the Barbuto decision applies only to situations involving the medical use of marijuana. At least for the present, Massachusetts employers remain free to prohibit recreational use of the drug.
We recommend that Massachusetts employers carefully review their drug-free workplace, drug testing and disability accommodation policies and practices and, with the aid of employment counsel, revise those policies and practices as necessary to comply with the Barbuto decision. In particular, employers should be wary of categorical prohibitions on marijuana use. Conversely, employers should also assess whether there are any special factors – such as major safety concerns – that might warrant an absolute prohibition on marijuana use.
Barring such special considerations, the SJC’s Barbuto decision obligates Massachusetts employers to consider the feasibility of allowing a disabled employee to use marijuana for medical reasons. Here, as well, counsel can assist an employer in determining whether the employee’s medical condition and job duties are such that the employee should be permitted to use the drug.
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If you have any questions about how the Barbuto decision may affect your obligations as an employer, or otherwise need assistance with any disability-related issues, please feel free to contact us.