Last week, the Supreme Judicial Court of Massachusetts issued an opinion in Cristina Barbutos v. Advantage Sales and Marketing, LLC, SJC-12226 (Ma. July 17, 2017), finding that an employee qualified to use marijuana under the Commonwealth’s medicinal marijuana statute had a cause of action against her former employer through the Commonwealth’s handicap discrimination statute. The opinion reversed the lower-court’s dismissal of the former employee’s cause of action, but simultaneously found that the medicinal marijuana act itself did not contain an implied statutory private right of action.

Specifically, Ms. Barbuto was offered an entry-level position which required a mandatory drug test. Prior to taking the test, Ms. Barbuto indicated to an employer representative that she had Crohn’s disease and that she had a written certification to use marijuana for medicinal purposes. She stated she did not use marijuana daily and would not consume it before or at work. Ms. Barbuto was ultimately terminated from the position for testing positive for marijuana and filed a charge of discrimination with the Massachusetts Commission Against Discrimination, and later a complaint in the Massachusetts Superior Court. Her Complaint included six claims:

  • Handicap discrimination, in violation of Mass. G.L. c. 151B, 4(16);
  • Interference with her right to be protected from handicap discrimination, in violation of Mass. G.L. c. 151B, 4(4A);
  • Aiding and abetting ASM in committing handicap discrimination, in violation of Mass. G.L. c. 151B, 4(5);[1]
  • Invasion of privacy, in violation of G.L. c. 214, 1B;
  • 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
  • Violation of public policy by terminating Plaintiff for lawfully using marijuana for medicinal purposes.

The Defendants moved for dismissal and dismissal was granted as to all but the invasion of privacy claim and the Supreme Court permitted Plaintiff’s application for direct appellate review.

The Court reviewed the Massachusetts Medical Marijuana Act noting that the statute included language that “Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner or denied any right or privilege, for such actions.” The Court then reviewed the Commonwealth’s handicap discrimination statute which provides it is an “unlawful practice . . . [f]or any employer . . . to dismiss from employment or refuse to hire . . ., because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.”

Plaintiff alleged that she was a handicapped person under the statute based on the fact that she suffered from Chron’s disease. Defendant denied that Plaintiff was a qualified handicapped person “because the only accommodation she sought – her continued use of medical marijuana – is a federal crime, and therefore is facially unreasonable” and also argued that even if she were a qualified handicapped person, she was terminated because she “failed a drug test that all employees are required to pass, not because of her handicap.” The court rejected both arguments.

As to Defendant’s first argument, the court disagreed, noting that “one generally would expect an employer not to interfere with the employee taking” medication and even if the employer had a drug policy that prohibited the use of such medication, “the employer would have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy.” If no equally effective alternative medication exists, the court noted that the employer would bear the burden of proving “that the employee’s use of the medication would cause an undue hardship to the employer’s business in order to justify the employer’s refusal to make an exception to the drug policy reasonably to accommodate the medical needs of the handicapped employee.”

The Court further reviewed the statutory language finding that language in the statute that makes clear that an employer need not make “any accommodation of any on-site medical use of marijuana” implicitly recognized “that the off-site medical use of marijuana might be a permissible ‘accommodation.’”

Because the burden rests on the employer to show that it is an undue hardship to permit the accommodation, the Court permitted the action to move forward. Specifically, the Court found the pleadings showed Plaintiff had alleged she was a qualified handicapped person because she could have competently performed the job with the medication. The Court further refused to find that an employer owes an employee no obligation to participate in the interactive process if the employee is using medical marijuana. Specifically, the court found: “A qualified handicapped employee has a right under G.L. c. 151B, § 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.”

What does this mean for employers? It means that if you are currently drug testing in Massachusetts and an employee tests positive for marijuana and he or she produces documentation to indicate that he or she is a certified medicinal user, the employer is going to need to determine whether it can reasonably accommodate the employee having marijuana in his/her system during the work day. Reviewing whether the job is safety-sensitive will likely now have an even larger effect than it has in the past in this analysis as will specifics regarding use of equipment, interaction with co-workers, and client-focused interactions.