HIGHLIGHTS:

  • In Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court concluded that refusing to accommodate an employee's use of medical marijuana to treat a qualified disability may be a violation of state anti-discrimination law.
  • The Barbuto court acknowledged that a reasonable accommodation may not be required if the use of medical marijuana would violate contractual or statutory obligations.
  • Schools must continue to comply with obligations to prohibit the use of illicit drugs under the federal Drug-Free Workplace Act and the Drug-Free Schools and Communities Act.

The Massachusetts Supreme Judicial Court recently ruled in Barbuto v. Advantage Sales and Marketing, LLC that an employee's use of medical marijuana to treat a qualified disability may be a reasonable accommodation under Massachusetts anti-discrimination law. The court's July 17, 2017, decision reversed the dismissal of an employee's disability discrimination claim, concluding that use of medical marijuana is not a facially unreasonable accommodation, even though marijuana remains a controlled substance under federal law. After Barbuto, Massachusetts employers must engage in an interactive process in response to employee requests for a reasonable accommodation to workplace policies prohibiting drug use. (See Holland & Knight alert, "Medical Marijuana Use May be Reasonable Accommodation Under Massachusetts Law," July 18, 2017).

Massachusetts schools too must evaluate the impact of Barbuto on policies prohibiting employee and student use of marijuana. As explained below, Barbuto does not diminish the obligations of schools to comply with federal laws and other contractual obligations, including the Drug-Free Workplace Act and the Drug-Free Schools and Communities Act.

Massachusetts Law Does Not Require Accommodation of Marijuana Use on School Grounds

Massachusetts legalized the medical use of marijuana in 2012. Individuals may obtain registration cards to verify that they have been prescribed marijuana to treat certain medical conditions. However, the law specifically exempts accommodation of "on-site medical use of marijuana" in any place of employment, on "school grounds" or in any "public place." The term "school grounds" is not defined but can reasonably be understood to include academic and residential areas, athletic fields and facilities, and other buildings and spaces used by schools in the performance of their educational missions.

Massachusetts voters approved recreational use of marijuana in 2016. As with medical use, marijuana for recreational use is limited to adults and in respect to school areas. Marijuana may not be possessed or consumed on the grounds of or within a school where children attend classes in preschool programs, kindergarten programs or grades 1 to 12. Employers may restrict the consumption of marijuana by employees at work, and property owners may also prohibit the consumption or sale of marijuana on properties they own, occupy or manage, with certain limitations for tenant lease agreements.

Compliance with the Drug-Free Workplace Act

In Barbuto, the court acknowledged that federal government contractors and recipients of federal grants are obligated to comply with the Drug-Free Workplace Act (DFWA), 41 U.S.C. §§8102(a), 8103(a) (2012). Pursuant to the DFWA, institutions receiving federal contracts in excess of $100,000 or receiving any federal grant, must prohibit the manufacture, use and distribution of controlled substances in the workplace. Under federal law, marijuana remains classified as a Schedule I controlled substance. The DFWA applies to most post-secondary schools and may apply to private secondary and elementary schools receiving federal grants.

Under the DFWA, institutions must make "a good faith effort" to maintain a drug-free workplace. This requirement is satisfied by establishing and publishing a policy prohibiting illegal drug use in the workplace, specifying actions that will be taken against employees for violations of the prohibition, establishing a drug-free awareness program, and requiring each employee to abide by the drug-free workplace policy and to notify the employer of any criminal drug statute conviction within five days. Failure to comply with the law is grounds for suspension or termination of the federal contract or grant.

Though the DFWA requires an institution's policy to prohibit explicitly the use of a controlled substance in the workplace, the law is silent as to adopting a policy concerning off-site conduct. It remains an open questions as to whether accommodations permitting medical or recreational use of marijuana off-site would violate the DFWA's mandate of a "good faith effort" to maintain a "drug-free workplace."

Compliance with the Drug-Free Schools and Communities Act

The Drug-Free Schools and Communities Act (DFSCA) and its implementing regulations require all institutions of higher education to submit certifications confirming the adoption and implementation of a drug prevention program as a condition of receiving any federal funding or assistance. Institutions must complete a review of the drug prevention program every two years to determine its effectiveness, implement changes as needed and ensure that sanctions are consistently enforced.

Pursuant to the DFSCA, an institution's drug prevention program must include, at a minimum:

  • annual distribution in writing to all employees and students a policy establishing standards of conduct that clearly prohibit the unlawful possession, use or distribution of illicit drugs and alcohol by students and employees on its property or as part of any of its activities
  • a description of the applicable legal sanctions under local, state or federal law for the unlawful possession or distribution of illicit drugs and alcohol
  • a description of health risks associated with use of illicit drugs and the abuse of alcohol
  • a description of any drug or alcohol counseling, treatment or rehabilitation or re-entry programs available to employees or students
  • a clear statement that the institution will impose disciplinary action for violation of the policy against use of illicit drugs and alcohol, as well as a description of those sanctions

An institution must, upon request, make records and information concerning its drug prevention program available to the U.S. Department of Education. The law permits the Department of Education to issue sanctions for noncompliance with the DFSCA, including requiring repayment of all forms of federal financial assistance during the period when an institution is found to have been out of compliance and the termination of any or all forms of federal financial assistance.

Like the DFWA, the DFSCA is silent as to adopting a policy concerning off-site conduct. "[A]t a minimum," the DFSCA requires that institutions of higher education prohibit the use by students and employees of illicit drugs and alcohol on campus, on any school-owned property or at any school activity.

Takeaways and Considerations

Massachusetts schools should evaluate their current drug prevention programs in light of Barbuto and their obligations under the DFWA and DFSCA, as applicable. The Barbuto decision requires Massachusetts schools, as employers, to evaluate policies regarding marijuana use by employees and engage in an interactive process to assess reasonable accommodations. Nonetheless, Barbuto does not require schools to permit marijuana use on school grounds or to otherwise violate contractual or statutory obligations under the DFWA and DFSCA. Failure to comply with the DFWA and DFSCA risks a loss of federal funding, including funding for financial aid.

Employee requests for a reasonable accommodation to use medical marijuana off-site in compliance with Massachusetts law should be evaluated on a case-by-case basis and in consultation with legal counsel to evaluate compliance with state law and any competing federal or contractual obligations.

Schools must advise students and employees that marijuana use remains illegal under federal law and that Massachusetts state law does not require the accommodation of marijuana use on school grounds. Elementary and secondary schools may ban marijuana possession on school grounds. Consequently, employees and students who violate school policies on marijuana may be disciplined and face legal claims.