This week the Massachusetts Supreme Judicial Court held that a fired medical marijuana user can pursue a disability discrimination claim against her former employer under the state’s anti-discrimination law. The decision is significant because it’s the first time a state’s highest court has recognized that the protections afforded under an anti-discrimination law extend to employees who use medicinal marijuana to treat disabilities.
The Barbuto v. ASM decision: This landmark decision involved the following facts: After an employee named Cristina Barbuto accepted an offer for an entry level position at Advantage Sales & Marketing (ASM), the company informed her that she had to take a mandatory drug test. Barbuto immediately disclosed that she would test positive for marijuana, which she took for medicinal purposes to treat Crohn’s Disease. She also assured ASM that she did not use marijuana daily and would not consume it before work or at work. When Barbuto tested positive for marijuana, ASM fired her.
Barbuto filed a disability discrimination claim against ASM under a Massachusetts state law that makes it unlawful to fire or refuse to hire a qualified person with a disability who is capable of performing the essential functions of the job with a reasonable accommodation. ASM argued, among other things, that Barbuto was not entitled to the accommodation she sought – continued use of medical marijuana – because using marijuana is a federal crime.
The Massachusetts Supreme Judicial Court disagreed, reasoning that ASM had a duty to participate in an interactive process with Barbuto to determine if any equally effective medical alternatives existed. The Court further reasoned that ASM needed to prove that the requested accommodation would cause undue hardship to the business, not that it was illegal under federal law. The Court then noted that the Massachusetts Medical Marijuana Act declares that patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. For those reasons, the Court let Barbuto pursue her disability discrimination claim.
Distinguishing state and federal law: Importantly, this case was decided under Massachusetts state law, not the federal Americans with Disabilities Act (ADA). Under the ADA, an individual who engages in illegal drug use does not meet the definition of “qualified individual with a disability.” Thus, as long as marijuana use remains illegal under federal law, employees cannot pursue discrimination claims like Barbuto’s under the ADA. But, as the Barbuto decision demonstrates, employees can pursue disability discrimination claims under state anti-discrimination laws, at least in Massachusetts.
Medical marijuana anti-discrimination provisions: Note that some states’ medical marijuana laws already prohibit employers from discriminating against medical marijuana cardholders. For example, the Arizona Medical Marijuana Act prohibits employers from discriminating against applicants or employees based on their status as a cardholder or a positive drug test for marijuana, unless: (1) that person used marijuana at work, or (2) the employer would lose federal funding or federal licensing by hiring or continuing to employ that person.
What this means for employers: It remains to be seen if other states will follow Massachusetts’s lead. In the meantime, Massachusetts employers should carefully scrutinize their drug testing policies and practices to ensure that they don’t run afoul of the state’s anti-discrimination law. Cautious employers outside of Massachusetts can do the same to reduce the risk of becoming defendants in similar cases in their home states. Regardless, all employers should ensure that their workplace policies and practices comply with any anti-discrimination provisions in applicable medical marijuana laws.