An employer’s ability to refuse to accommodate an employee’s use of medical marijuana because it is a federal crime has been undermined by a court this week. A Massachusetts court ruled “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 decision involved an employee whose physician was treating her Crohn’s disease with medical marijuana. After she was fired for testing positive for marijuana, she brought a claim for handicap discrimination under a Massachusetts non-discrimination law. Massachusetts also has a medical marijuana act which declares that patients must not be denied any “right or privilege” because of their medical marijuana use. The employer raised the defense that there was no reasonable accommodation because possession of marijuana violates federal law, but the court disagreed that accommodating the use of medical marijuana was facially unreasonable.

At this stage of the case, the court did not hold the employer liable to the employee. In fact, the court noted that the employer might be able to show that it would be an undue hardship for the employer to accommodate the employee’s use of medical marijuana. Examples of ways the employer could show undue hardship included that the employee’s continued use of medical marijuana impaired the employee’s work performance, or posed an unacceptable safety risk, or violated an employer’s contractual or statutory obligations such as Department of Transportation regulations prohibiting safety-sensitive employees from using marijuana. However, the court stated the employer had an obligation to participate in the interactive process before terminating the plaintiff’s employment.

The plaintiff, Christina Barbuto, had a physician’s certification that qualified her as a medical marijuana patient. She applied for and was offered a job working at a supermarket promoting products. When told she must take a mandatory drug test, she disclosed that she would test positive for marijuana because she used it in small quantities at home, usually in the evening, two or three times a week, to treat her Crohn’s disease. She said she did not use marijuana daily and would not use it at work or before work. After her drug test results were positive for marijuana, she was fired by the HR representative who explained “we follow federal law, not state law.” The employer, Advantage Sales and Marketing, LLC persuaded the trial court to dismiss Barbuto’s disability claim, but it was reinstated on appeal. The high court wrote: “where an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it.” Barbuto v. Advantage Sales and Marketing, LLC, Supreme Judicial Court of Massachusetts, no. SJC-12226, July 17, 2017.

Ohio’s medical marijuana law has similarities and differences to the Massachusetts law. Crohn’s disease is expressly identified as a qualifying medical condition in both laws. Ohio’s medical marijuana law expressly states that it does not require an employer to accommodate an employee’s use of medical marijuana and it does not prohibit an employer from discharging or taking action against employees or applicants because they use medical marijuana. How those provisions will interface with Ohio’s non-discrimination statute has not been decided by any Ohio court. Medical marijuana recommendations for Ohio patients will not be available until September, 2018, at the earliest.