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July 17, 2017
Massachusetts High Court Recognizes Employee Right of Qualified Medical Marijuana Users To Allege Handicap Discrimination For Off-Site Use of Medicinal Marijuana
In a long-awaited decision, the highest court in Massachusetts - the Supreme Judicial Court ("SJC") - ruled today in Cristina Barbuto v. Advantage Sales & Marketing, LLC, et al. that an employee who used medical marijuana to treat a debilitating medical condition may proceed with a claim of handicap discrimination after being terminated from employment based on her testing positive for her off-site use of physician-prescribed marijuana.
The facts in Barbuto were straightforward.  Ms. Barbuto was hired into an entry-level position by Advantage Sales & Marketing, where she would be assigned to supermarkets to set up and hand out food samples to supermarket customers.  After having accepted an offer of employment, Ms. Barbuto was informed that she would be required to submit to a mandatory drug test.  Ms. Barbuto immediately informed her supervisor that she would test positive for marijuana because she suffers from Crohn's disease - a debilitating gastrointestinal condition.  To treat her condition, Ms. Barbuto's physician had provided her with a written certification allowing her to use marijuana for medicinal purposes.  Specifically, Ms. Barbuto's marijuana use enabled her to appropriately gain and maintain a healthy weight. 
In response to Ms. Barbuto's disclosure, the supervisor stated that her medicinal use "should not be a problem."  Despite the supervisor's confident assurance, Ms. Barbuto's employment was terminated for testing positive for marijuana after only completing one day of work.  The employer's stated rationale was that it followed Federal, and not state, law with respect to marijuana use, and marijuana is a Scheduled I Controlled Substance under Federal law.  According to the employer, it would have been "facially unreasonable" to accommodate the employee's use, which constituted a crime under Federal law. 
Barbuto's Lawsuit
Following her employment termination, Ms. Barbuto filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD") and then withdrew her complaint to file her claims in Massachusetts Superior Court.  Ms. Barbuto's Superior Court complaint pled six claims:  (1) handicap discrimination under M.G.L. chapter 151B; (2) interference with her right to be protected from handicap discrimination under the same state statute; (3) aiding and abetting the employer in committing handicap discrimination against the human resources representative for the employer; (4) invasion of privacy under M.G.L. chapter 214, Section 1B; (5) denial of the "right or privilege" to use marijuana lawfully as a registered patient to treat a debilitating medical condition, in violation of the medical marijuana act; and (6) violation of public policy by terminating her employment for lawful use of marijuana for medicinal purposes. 
In May 2016, the Superior Court dismissed all of Ms. Barbuto's claims except for the invasion of privacy claim, which it stayed pending her appeal of the dismissed claims.
The SJC's Decision
Given the novelty and importance of the issues posed, the SJC accepted direct appellate review of the case.  After receiving multiple court briefs, including a comprehensive brief from the MCAD, the SJC made the following noteworthy findings - each of which will undoubtedly be cited in future cases both within Massachusetts and beyond:
  • "Under Massachusetts law, as a result of the [medical marijuana] act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication."; 
  • "Where, in the opinion of the 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."; and 
  • "A qualified handicapped employee has a right under G.L. c. 151B, ยง 4(16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job." 
In making the above findings, the SJC made clear - in response to the employer's argument - "the fact that the employee's possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation."  As the Court noted, an employer "would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use."  Thus, the Court reasoned, the "only person at risk of Federal criminal prosecution for [such] possession" is the employee. [1] 
The SJC was also clear that upon request by an employee for an accommodation in the form of off-site use of medical marijuana, the employer is obligated to participate in the interactive process to explore whether there are any alternative, equally effective medications that could possibly be used that would not run afoul of the employer's drug policy.  As stated by the Court:  "[t]he failure to explore a reasonable accommodation alone is sufficient to support a claim of handicap discrimination provided the plaintiff proves that a reasonable accommodation existed that would have enabled her" to perform the essential functions of the job with or without a reasonable accommodation. 
The end result of the SJC's rulings is that the lower court's dismissal of Ms. Barbuto's  handicap-related claims is reversed, and Ms. Barbuto may continue to pursue her disability-related claims, along with her invasion of privacy claim, in Superior Court. [2] 
What About Safety Sensitive Positions?
Fortunately, the SJC provided additional guidance with respect to the rights of employers who prohibit marijuana use - both on and off-site - for safety sensitive positions and/or where such use would violate an employer's contractual or statutory obligations.  As stated by the Court, "an employer might prove the continued use of medical marijuana would impair the employee's performance of her work or pose an 'unacceptably significant' safety risk to the public, the employee, or her fellow employees."  In such an instance, the employer would meet its burden to establish that the terminated employee's use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the employer's business.  By way of example, the SJC noted:  "[w]e recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety-sensitive employee subject to drug testing under the department's drug testing regulations from using marijuana."  Thus, the SJC has clearly left open the door for employers to continue to prohibit marijuana use for safety-sensitive positions, provided the employer can establish that such use would pose an unacceptable safety risk. 
Moving Forward
With respect to non-safety-sensitive positions, the law is now clear in Massachusetts:  employers must engage in the interactive process in an attempt to accommodate an employee's lawful use of medical marijuana, and employers must provide a reasonable accommodation, including permitting the off-site use of medical marijuana, unless such use can be proven to result in an undue hardship to the employer's business.
If you would like to discuss the specific application of this decision to your workplace or if you need guidance concerning modifying your drug-free workplace policies, please contact any member of the Labor, Employment & Employee Benefits Group.

[1]      Notably, in its opinion, the SJC specifically stated that the employer had "waived the argument that Federal preemption requires the conclusion that an employee's use of medical marijuana is facially unreasonable as an accommodation."  Practically speaking, this likely means that in a future case an employer will likely assert a Federal preemption defense.  Although we believe such a defense is unlikely to prevail, it remains to be seen how a court will ultimately treat the issue once raised and not waived.
[2]     The Superior Court's dismissal of the claim of wrongful termination in violation of public policy, and her claim of denial of a "right or privilege" under the medical marijuana act, was upheld - thus making clear that an employee may not bring a private right of action for alleged violation of the medical marijuana act itself, nor may an employee attempt to expand the at-will doctrine by claiming termination in violation of public policy for lawfully using medicinal marijuana.   

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