The Massachusetts Supreme Judicial Court ruled this week that an employee’s use of medical marijuana to treat her disability may have to be reasonably accommodated under the state’s handicap discrimination law.
In Barbuto v. Advantage Sales and Marketing, the Court said that the plaintiff-employee had a claim of disability discrimination under M.G.L. c. 151B §4(16) and that the lower court erred when it dismissed the claim. The Court held that the plaintiff, who was taking medical marijuana to treat her Crohn’s disease and was terminated from employment because she tested positive for marijuana, had a civil remedy against her employer for handicap discrimination.
Christina Barbuto was offered an entry-level position with ASM and was required to take a post-offer drug test. Ms. Barbuto told her prospective supervisor that she would test positive for marijuana because she was taking marijuana under a doctor’s certificate for her Crohn’s disease, and “as a result she was a qualifying medical marijuana patient under Massachusetts law. Barbuto added that she did not use marijuana daily and would not consume it before work or at work.”
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The supervisor told Ms. Barbuto that her use of marijuana for that reason “should not be a problem” and later confirmed that. Ms. Barbuto underwent the drug test. After her first day of work, Ms. Barbuto was notified by a Human Resources representative (named as an individual defendant in the lawsuit) that she was being terminated for testing positive for marijuana. According to the Court’s decision, the HR representative told Ms. Barbuto “that ASM did not care if Barbuto used marijuana to treat her medical condition because ‘we follow federal law, not state law.’”
The Massachusetts Medical Marijuana Act defines a “qualifying patient” as “a person who has been diagnosed by a licensed physician as having a debilitating medical condition,” which, by the terms of the statute, includes Crohn’s disease. If an individual is a “qualifying patient” who uses medical marijuana in accordance with the MMA, he or she is protected under the MMA from “arrest or prosecution, or civil penalty, for the medical use of marijuana.” The MMA also provides 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 statute specifically provides that “nothing in this law requires accommodation of any on-site medical use of marijuana in any place of employment.”
On the other hand, marijuana is still an illegal drug under the federal Controlled Substances Act. Under federal law, possession of marijuana is a crime, regardless of whether it is prescribed by a physician for medical use. By characterizing marijuana in 1979 as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Of course, since that time, many states have determined otherwise.
The Barbuto Court noted that under current federal law, “a qualifying patient in Massachusetts who has been lawfully prescribed marijuana remains potentially subject to Federal criminal prosecution for possessing the marijuana prescribed.”
Ms. Barbuto argued that she was a “handicapped person” within the meaning of the state disability discrimination law because she suffered serious physical impairments from Crohn’s disease, and that she was a “qualified handicapped person” under state law because she was capable of performing the essential functions of her job with a reasonable accommodation. Her proposed accommodation was for ASM to waive its policy that bars from employment anyone who tests positive for marijuana. According to her lawsuit, ASM refused to accommodate her and failed to engage in the “interactive process.”
(Although the Court did not address it, readers should be aware that the federal Americans with Disabilities Act excludes from protection any current user of illegal drugs, including current users of marijuana.)
The Court’s decision
The Court agreed that Ms. Barbuto’s Crohn’s disease, which she alleged caused her to have “little or no appetite” and difficulty maintaining a healthy weight, was a “handicap.”
The Court then determined that Ms. Barbuto’s proposed accommodation was “reasonable” on its face, rejecting the employer’s argument that the accommodation was not reasonable because her continued use of marijuana would be a federal crime. The Court also found that ASM should have engaged in the interactive process with Ms. Barbuto.
In finding that Ms. Barbuto’s proposed accommodation was facially reasonable, the Court noted that the enactment of the MMA meant that the off-site use of medically prescribed marijuana was lawful under state law.
Regarding the apparent conflict between federal and state law, the Court said,
The fact that the employee's possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation. The only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.
Nor are we convinced that, as a matter of public policy, we should declare such an accommodation to be per se unreasonable solely out of respect for the Federal law prohibiting the possession of marijuana even where lawfully prescribed by a physician. ...To declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions....
In addition to finding that federal law did not necessarily trump state law in this respect, the Court also found that ASM should have engaged in the interactive process with Ms. Barbuto:
In addition, even if the accommodation of the use of medical marijuana were facially unreasonable (which it is not), the employer here still owed the plaintiff an obligation under G. L. c. 151B, § 4 (16), before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use that was not prohibited by the employer's drug policy. This failure to explore a reasonable accommodation alone is sufficient to support a claim of handicap discrimination provided the plaintiff proves that a reasonable accommodation existed that would have enabled her to be a “qualified handicapped person.”
The Court distinguished the Barbuto case from the well-known Coats v. Dish Network decision from Colorado, which upheld the dismissal of a medical marijuana user’s wrongful termination claim. As the Massachusetts Court noted, the plaintiff in Coats had not sued for disability discrimination but, rather, for wrongful termination based on the “public policy” in the Colorado “lawful products” statute.
Although the Court reversed dismissal of Ms. Barbuto’s handicap discrimination claim, it affirmed the lower court’s dismissal of her MMA and wrongful discharge claims. The Court found that there was no private right of action under the MMA. Moreover, because the handicap discrimination statute already provided a remedy, the Court declined to recognize a separate cause of action for wrongful discharge based on that statute.
It is important to note that the Massachusetts Court was ruling on the defendants’ motion to dismiss for failure to state claims for which relief may be granted. Because a motion to dismiss is based only on the allegations of the lawsuit (rather than on actual evidence), courts are required to assume that the plaintiff’s allegations are true, and they have to decide whether – with that assumption – the plaintiff has stated valid claims under the law. If the claims are valid, the parties proceed with discovery and can later file motions based on the evidence that is developed during discovery, or the case may go to trial. Because the Barbuto case was decided at the “motion to dismiss” stage, it is still possible that the employer and the HR representative will prevail. The Court explicitly recognized this:
The defendants at summary judgment or trial may offer evidence to meet their burden to show that the plaintiff's use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the defendants' business . . . For instance, an employer might prove that the continued use of medical marijuana would impair the employee's performance of her work or pose an "unacceptably significant" safety risk to the public, the employee, or her fellow employees... Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer's contractual or statutory obligation, and thereby jeopardize its ability to perform its business.
Although Barbuto is a Massachusetts decision, employers in all “medical marijuana states” should pay close attention. It is very possible that courts in other states with medical marijuana and disability discrimination statutes will follow Massachusetts’ lead.
The Barbuto decision makes clear that employers are expected to engage in the interactive process by working individually with employees to identify reasonable accommodations that will allow the employees to perform the essential functions of their jobs. Employers outside of Massachusetts should be aware that this is usually a requirement under the Americans with Disabilities Act, as well, and possibly under other state fair employment practices laws.
With respect to considering reasonable accommodations for employees who are lawfully using medical marijuana, employers in Massachusetts and other states with medical marijuana laws should consider the following:
- Policies that prohibit all marijuana use without exceptions for medical marijuana users may violate state disability discrimination laws. However, policies prohibiting marijuana use at work or during work hours should still be lawful in Massachusetts and possibly in other medical marijuana states, depending on the provisions of the applicable statutes.
- The defense of “undue hardship” still exists, particularly in safety-sensitive positions where employees may endanger themselves, co-workers, or the public if under the influence of marijuana.
- “Undue hardship” may be a valid defense where an employer has a contractual or statutory obligation to adhere to federal drug testing standards, such as U.S. Department of Transportation regulations. However, in these situations, the interactive process must still take place.