Until recently, employers had no duty to accommodate an employee's use of medical marijuana unless a state statute said otherwise—they could rely on their drug-free workplace policy and just say no. Indeed, the Drug-Free Workplace Act of 1988 required federal contractors to maintain drug-free workplaces, and many state laws followed. Many private employers not subject to the Act adopted drug-free workplace policies anyway. Such policies became the norm in the private and public sectors.

But efforts to legalize medical marijuana also have taken hold. Twenty-nine states have legalized medical marijuana, beginning with California in 1996 (it remains illegal under federal law). Of those twenty-nine states, some explicitly prohibit employers from terminating or otherwise penalizing employees for using medical marijuana.1 In those states where medical marijuana was legalized without explicit employment protections, state courts have consistently held that employers have no affirmative duty to accommodate employees who use it. Until now, those employers were on reasonably solid legal ground in refusing to permit exceptions to their drug-free workplace policies to accommodate the use of medical marijuana.

That ground may be shifting, at least in some jurisdictions. Recently the Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales and Marketing, LLC ruled that employers cannot escape their affirmative duty to engage in the interactive process with an employee who is prescribed medical marijuana simply because the employer has a drug-free workplace policy and federal law prohibits the use of medical marijuana. Ms. Cristina Barbuto applied for, and was offered, a position with Advantage Sales and Marketing. ASM advised her, post-offer, that it required a drug test. Ms. Barbuto agreed but explained that she would test positive for marijuana because, per Massachusetts law, she uses medical marijuana under a prescription to manage her Crohn's disease. She said she did not use it daily or right before or at work.

Ms. Barbuto took the drug test, tested positive as she forewarned, and completed her first day of work—whereupon ASM fired her for violating its drug-free workplace policy. Ms. Barbuto sued for handicap discrimination in violation of Massachusetts' anti-discrimination law, M.G.L. 151B § 4, citing ASM's failure to accommodate her use of medical marijuana.

The Massachusetts Supreme Judicial Court reversed the Superior Court's dismissal of Ms. Barbuto's complaint for failure to state a claim for disability discrimination under Massachusetts law. ASM argued that Ms. Barbuto's claim should fail on its face, because it could not be reasonable to accommodate the use of a substance prohibited by federal law. The SJC rejected that argument, noting that Massachusetts voters and its legislature enacted the medical marijuana law protecting that use. Accordingly, an employer must treat an employee's use of medically prescribed marijuana as it would the employee's use of any other lawfully prescribed medication. Massachusetts employers can no longer simply rely on their drug-free workplace policies to terminate employees who use medical marijuana. Instead, Massachusetts employers must, at a bare minimum, engage in the interactive process to explore alternative accommodations that would allow the employee to do his or her job.

The Barbuto decision applies only to Massachusetts, but it may be portend things to come elsewhere. Employers there and elsewhere should consult the state statute on medical marijuana (if one exists) to determine whether it requires accommodating employees. In some states, that duty is explicit. Other states do not explicitly protect employees who use medical marijuana, but have protections that resemble the Massachusetts "denial of a right or privilege" provision. In those states, whether an affirmative duty to accommodate exists, and the extent of that duty, will depend on how that state's courts interpret the statute. Absent such a decision from the state's courts, guidance from the state anti-discrimination agency may be useful.

As more states legalize the use of medical marijuana, more may require employers to engage in the interactive process with their employees to accommodate the use of medical marijuana. Employers, particularly those with employees in multiple states, will need to remain aware of their legal obligations. Understanding your legal obligations when an employee requests such an accommodation will help you find a comfortable space between the rock and the hard place. We will continue to monitor the evolution of the law on this issue.