On July 17, the Massachusetts Supreme Judicial Court held that an employee who was fired because she tested positive for using legally prescribed medical marijuana could sue her employer for handicap discrimination under the Massachusetts anti-discrimination law, G.L. c. 151B. In its groundbreaking decision, the court also held that employers may be required to permit employees to use medical marijuana as a reasonable accommodation under state law, despite marijuana's status as an illegal drug under federal law, unless the employer can prove that doing so constitutes an undue hardship.

Background

In 2014, Cristina Barbuto accepted a job with Advantage Sales and Marketing (ASM) and was advised that she needed to take a mandatory drug test before commencing employment. Barbuto advised her supervisor that she expected to test positive for marijuana because she had been prescribed the drug under the Massachusetts Medical Marijuana Act to treat her Crohn's disease, a gastrointestinal disorder that made it difficult for Barbuto to maintain a healthy weight. Barbuto claims she told her supervisor that she used small quantities of marijuana at home two or three times per week and would not use it before or during work. After initially being told her use of medical marijuana would not present a problem, ASM fired Barbuto after her first day at work for testing positive for marijuana.

Barbuto subsequently filed a lawsuit against ASM and a human resources representative, alleging, among other claims not at issue here, that ASM fired her because of her handicap and failed to reasonably accommodate her medical condition when the company refused to waive its policy of not hiring individuals who test positive for marijuana. The Superior Court dismissed Barbuto's claim, holding that Barbuto's use of medical marijuana violated federal law, and therefore her accommodation request was per se unreasonable.

Marijuana as a Reasonable Accommodation

On appeal, the Supreme Judicial Court reversed the trial court's dismissal and held that Barbuto had alleged a viable claim of handicap discrimination. The court first rejected ASM's argument that use of marijuana as an accommodation is facially unreasonable, holding under Massachusetts law that "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." That the use of marijuana remains illegal under federal law does not make that use unreasonable per se as an accommodation, the court held, noting the employee, and not the employer, would bear any risk of federal criminal prosecution.

In further support of its conclusion, the court noted the Medical Marijuana Act provides that qualifying patients shall not be denied "any right or privilege" due to their medical marijuana use. Because Barbuto, like all disabled employees, was entitled to a reasonable accommodation under c. 151B, the court held that denying her request for a waiver from ASM's drug testing policy would deny her the "right" to accommodation solely because of her use of legally prescribed marijuana. The Medical Marijuana Act also makes clear that it does not require employers to permit "on-site medical use of marijuana in any place of employment," which the court interpreted as implicitly recognizing that "off-site medical use of marijuana might be a permissible accommodation."

The court further noted that even if the use of medical marijuana were unreasonable, ASM still had a duty to engage Barbuto in an interactive process to determine whether alternative, equally effective accommodations existed that would permit Barbuto to perform the essential functions of her job. Here, where Barbuto's physician opined that medical marijuana was the most effective medication for her condition and no other equally effective medications existed that would comply with ASM's drug testing policy, the court held that an exception to ASM's drug testing policy was facially reasonable.

In sending Barbuto's claim back to the trial court, the court noted that ASM could still prevail at summary judgment or at trial to the extent it could prove that Barbuto's use of medical marijuana would impose an undue hardship on ASM's business. Among other things, the court noted that ASM might demonstrate that Barbuto's use of marijuana would impair her work performance or pose "unacceptably significant" safety risks to herself, her co-workers or the public. Similarly, an employer may be able to prove undue hardship if the employee's use of marijuana would violate a contractual or statutory obligation, such as the federal Department of Transportation prohibition against hiring for safety-sensitive positions employees who use marijuana. Still, the court observed that such determinations are to be resolved at summary judgment or at trial, and that at all times it is the employer's burden to prove the existence of such an undue hardship.

What Should Employers Do Now?

It is important to note that nothing in the court's opinion requires employers to permit on-site marijuana use or impairment. Nor does it require employers to permit employee use of recreational marijuana, which was recently legalized in Massachusetts. Nonetheless, this decision will create challenges for all Massachusetts employers. Employers should review their current hiring and employment policies, particularly drug testing procedures that purport to automatically exclude applicants and employees who test positive for marijuana. Human resources and management personnel should also be trained to recognize their obligations to engage in an interactive process whenever an employee seeks any disability-related accommodation, whether or not it involves medical marijuana. We also encourage employers to contact their counsel before taking any adverse employment action involving a Massachusetts employee currently using medical marijuana.