While the SJC’s decision necessarily changes previous thinking among employers that medical marijuana use was not protected by state workplace anti-discrimination law, the Barbuto decision has some important limitations.
The Massachusetts Supreme Judicial Court (SJC) handed down a controversial decision on July 17, 2017, ruling that qualified medical marijuana users may bring disability discrimination claims (referred to in Massachusetts as handicap discrimination claims) against their employers for failing to reasonably accommodate after-work medical marijuana use. The decision in Barbuto v. Advantage Sales and Marketing, LLC, SJC-12226 makes clear that many Massachusetts employers can no longer rely on federal law prohibiting marijuana use and possession in enforcing “zero tolerance” drug policies. Additionally, Massachusetts employers should proceed with caution when dealing with employees who have questions related to medical marijuana use.
In Barbuto, the plaintiff, Cristina Barbuto, possessed a medical marijuana prescription under Massachusetts law to treat Crohn’s disease. Barbuto allegedly informed her employer, Advantage Sales and Marketing, LLC (ASM), that she would test positive for marijuana in a mandatory hiring drug test because she was a qualified medical marijuana patient, and that she would not consume marijuana before or during work. When ASM terminated Barbuto’s employment after she tested positive for marijuana, she brought suit against ASM alleging, among other claims, handicap discrimination and failure to accommodate in violation of Massachusetts law. ASM successfully moved to dismiss the handicap discrimination claim, and the SJC heard Barbuto’s appeal on direct appellate review.
The SJC rejected ASM’s argument (one often made by employers across the country) that a drug test requirement waiver was facially unreasonable because her continued use of medical marijuana was a federal crime. Instead, the SJC relied on the Massachusetts Act for the Humanitarian Medical Use of Marijuana directive that qualified medical marijuana patients – i.e., those who have a physician’s certification – shall not be denied “any right or privilege” for their use of medicinal marijuana under state law, including the right not to be fired because of a handicap. The SJC found that Barbuto stated a claim for handicap discrimination by alleging that she could have performed her job with the medication, and her requested exception to ASM’s drug policy was at least a facially reasonable accommodation.
While the SJC’s decision necessarily changes previous thinking among employers that medical marijuana use was not protected by state workplace anti-discrimination law, the Barbuto decision has some important limitations. First, the SJC recognized that employers can prevail by showing that an employee’s medical marijuana use would impose an undue hardship on an employer’s business. Employers with federal government contracts who must comply with the Federal Drug Free Workplace Act, for example, can still prove undue hardship. The SJC also emphasized that the requested accommodation at issue was for allowance of after-work medical marijuana use, not use during work, and reaffirmed that Massachusetts law does not require any employer to permit on-site marijuana use as an employee accommodation.
Barbuto also serves as a reminder to employers about the importance of engaging in an “interactive process” with employees seeking accommodations. The Court noted that Barbuto stated a claim for handicap discrimination based on ASM’s failure to engage in the process alone; ASM terminated Barbuto immediately after her hiring drug test results without the interactive process of discussing accommodations. As medical marijuana use continues to grow in Massachusetts, employers should be prepared to engage in meaningful conversations with qualified employees who seek an accommodation, and should review their current workplace drug testing and anti-discrimination policies to ensure compliance with Massachusetts law.