In a recent case, the Supreme Judicial Court of Massachusetts (the “SJC”) held that medical marijuana may constitute a “reasonable accommodation” for employees. As a result, employers may not terminate employees for failing drug tests if the employees fall within that protection – provided the accommodation does not pose an undue hardship for the employer.

Case background: In Barbuto v. Advantage Sales & Marketing, LLC (Massachusetts Supreme Judicial Court, July 17, 2017), SJC considered whether an employer had violated the Massachusetts anti-discrimination statute, M.G.L. c. § 151B, by terminating an employee who had failed a drug test for using marijuana at her home to ease her symptoms of Crohn’s disease and irritable bowel syndrome. Upon receiving the positive drug test, the employer terminated the employee – who had a duly-issued certificate from her physician authorizing the use of marijuana for those purposes – over her protests that she was medically authorized to use marijuana, which is legal in Massachusetts (effective January 1, 2013). The employer responded that it followed the federal, not state, law on the issue.

The employee filed suit for 1) discrimination on the basis of physical handicap, 2) violation of privacy, 3) wrongful termination in light of her medically authorized use of marijuana, and 4) violation of public policy. The trial court dismissed her complaint, and the employee appealed directly to the Supreme Judicial Court.

Legal Analysis: Massachusetts’ anti-discrimination statute, M.G.L. c. 151B, § 4, requires employers to provide “a qualified handicapped person” with a “reasonable accommodation” if necessary to enable the employee to perform the essential job functions of her position, unless doing so would impose an “undue hardship” on the employer (usually in the form of a disparate economic impact, or employee safety risks).

The SJC held that allowing a qualified handicapped employee to use medical marijuana to alleviate or manage a medical condition is not unreasonable on its face. The court was unpersuaded by the employer’s argument that permitting its employees to use medical marijuana – while permitted by state law – nonetheless would expose the employer to criminal liability under federal law (which does not provide for legal use of marijuana). The court disagreed, noting that the only potentially criminally liable offender would be the employee herself.

The court’s ruling, however, does not constitute a blanket allowance for use of medical marijuana. The employer and employee should still engage in the “interactive process” between them to identify and determine an appropriate “reasonable accommodation” to allow the employee to perform her job functions. If an equally effective medication exists that does not pose any implications of illegality, the employer may allow the employee to use that medication as a reasonable accommodation – even if the employee would prefer medical marijuana. If the employer proved medical marijuana posed an unreasonable safety risk to its employees, it could also prohibit medical marijuana use as a reasonable accommodation.

Finally, if the employer is required to follow federal law (such as federal contractors subject to the Drug Free Workplace Act), or has other “contractual or statutory obligations” obviating the Massachusetts state law allowance of medical marijuana, the employer may be able to terminate the employee without penalty. As the SJC’s ruling was made very early in the litigation of the underlying case, following the trial court’s grant of the employer’s motion to dismiss the complaint, the employer may yet bring these arguments on grounds that it poses an undue hardship.

We will follow the case on remand to the trial court from the Supreme Judicial Court, and provide an update as appropriate.