On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”), the highest state court in Massachusetts, held that an employer could be liable for disability discrimination by declining employment based on an individual’s off-duty medical marijuana use. This is a landmark decision, which has major implications for employers with drug testing programs and drug-free workplace policies.

Despite the proliferation of medical and recreational marijuana state laws across the country in recent years, employers have been relatively incubated from exposure for refusing to employ individuals who use marijuana. Indeed, many state laws contain explicit protections for employers. According to the SJC’s decision in Barbuto v. Advantage Sales and Marketing, LLC, however, employers in Massachusetts should pause before refusing to employ qualified individuals who use marijuana off-duty for medicinal purposes.

Background

Cristina Barbuto, the plaintiff, is an individual diagnosed with Crohn’s disease and Irritable Bowel Syndrome, who accepted an office job at Advantage Sales and Marketing. Because of the plaintiff’s medical conditions, a physician recommended medical marijuana, which, according to the Complaint, the plaintiff used during the evening 2-3 times per week, and never before or at work. However, the company required all employees to take a mandatory drug test. The plaintiff warned her supervisor that she would test positive for marijuana, and he responded that plaintiff’s use of marijuana “should not be a problem.” Nonetheless, after the plaintiff completed her first day of work, the company terminated her employment for testing positive for marijuana. The human resources representative told the plaintiff that the company follows “federal law, not state law.” The plaintiff thereafter filed a complaint in state court. Among other things, she asserted claims of disability discrimination under the Massachusetts Fair Employment Practices Law, wrongful termination under the state medical marijuana law (“Medical Marijuana Act”), and wrongful termination in violation of public policy.

The company moved to dismiss the plaintiff’s disability discrimination claim arguing that: (1) the plaintiff is not a “qualified” handicapped person because the only accommodation she requested was in violation of federal law; and (2) the company terminated the plaintiff’s employment because she failed a drug test that all employees were required to pass, regardless of handicap. Further, the company argued that the Medical Marijuana Act does not provide a private right of action, and that the Medical Marijuana Act expresses no clear public policy that would forbid an employer from terminating an employee. The trial court agreed with the company’s arguments and dismissed these claims.

Decision

The SJC disagreed with the trial court’s conclusion that employers need not ever tolerate medical marijuana use as a reasonable accommodation under the Massachusetts Fair Employment Practices Law. The SJC held that marijuana’s illegality under federal law does not make it per se unreasonable to allow its off-duty medical use as an accommodation under the Massachusetts Fair Employment Practices Law. According to the SJC, because the “only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee,” an employer has no risk of criminal prosecution by permitting off-duty use of medical marijuana. The SJC also concluded that, even if accommodating medical marijuana use were facially unreasonable, the employer still owed the plaintiff an obligation under the Massachusetts Fair Employment Practices Law, before terminating her employment, to explore with her whether there was an equally effective alternative medication she could use. Indeed, the SJC held that the employer’s failure to explore alternative accommodations alone is enough to support a handicap discrimination claim.

The SJC also rejected the company’s attempt to rely on its neutral drug testing policy that all employees must pass. The SJC reasoned that denying employment to a handicapped employee because the company prohibits the use of a particular medication that the employee needs to treat her handicap is akin to denying employment because of the handicap itself.

The SJC limited its ruling. It held — consistent with the language in the Medical Marijuana Act — that employers have no obligation to accommodate on-the-job use of marijuana. The SJC observed that its ruling “does not necessarily mean that the employee will prevail in proving handicap discrimination.” The company could present evidence at summary judgment or trial to show that the plaintiff’s use of medical marijuana would impose an undue hardship. As examples, the SJC mentioned that an employer could prove that medical marijuana use would impair an employee’s performance, create an “unacceptably significant” safety risk, or violate the employer’s “contractual or statutory obligations.” (The SJC also noted that the recent legalization of marijuana for recreational purposes in Massachusetts was irrelevant to the issues on appeal.)

In agreement with the trial court, the SJC held that (1) there is no private right of action under the Medical Marijuana Act because the law is silent in that regard, and (2) the Medical Marijuana Act does not give rise to a public policy claim given the statutory action available under the Massachusetts Fair Employment Practices Law.

Outlook

It is important to note that the Barbuto decision departs from federal law regarding disability discrimination and the decisions of most courts in other states that have addressed similar claims. Under the Americans with Disabilities Act (“ADA”), an individual who uses illegal drugs is not a “qualified” disabled person entitled to reasonable accommodation. Because marijuana is illegal under federal law, employers have no obligation under the ADA to tolerate off-duty use of medical marijuana. According to the SJC, however, employee use of medical marijuana is not facially unreasonable under the Massachusetts Fair Employment Practices Law and, therefore, may be a reasonable accommodation.

In the wake of Barbuto, employers would be wise to audit their drug testing, hiring, and accommodation policies. Massachusetts employers should, consistent with the SJC’s ruling, engage in the interactive process when an applicant or employee tests positive for marijuana due to off-duty medical marijuana use, or explains that he or she will test positive due to off-duty medical marijuana use.

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