With many states now authorizing individuals to use marijuana for medicinal purposes, companies are confronting situations where they must decide whether to continue employing individuals who have been prescribed marijuana for medical purposes and fail drug tests or terminate the employment of such individuals. Based on two recent court decisions (one from a state court Massachusetts and one from a federal court in Connecticut), companies may face potential liability if they choose to terminate the employment of such employees.
In Barbuto v. Advantage Sales & Marketing, LLC, 477 Mass. 456, 78 N.E.3d 37 (2017), the Supreme Judicial Court of Massachusetts for Suffolk County held that an employee may state a claim for handicap discrimination under G.L.c. 151B, § 4(16), when the employee has been terminated for testing positive for marijuana and the marijuana is prescribed for medicinal purposes. In Barbuto, Christina Barbuto suffered from Crohn’s disease and irritable bowel syndrome and, as a result, she had difficulty maintaining a healthy weight. Barbuto’s doctor had prescribed marijuana to help her with her medical conditions. She used the marijuana in small quantities at home, typically in the evening and two or three times a week. Once she started taking marijuana, she was able to maintain a healthy weight. When she was offered an entry-level position at Advantage Sales & Marketing (“ASM”), she was required to take a drug test. She advised the company of her medical marijuana use and the supervisor told her that it “should not be a problem.” Barbuto failed the drug test and her employment was terminated as a result, even though she had not reported to work in an intoxicated state. She filed a charge of discrimination with the Massachusetts Commission Against Discrimination and subsequently filed suit in Massachusetts Superior Court, which the court dismissed (with the exception of the invasion of privacy claim) in response to a motion to dismiss. Barbuto appealed.
The appellate court noted that G.L.c. 151B, § 4(16) states it is unlawful for an employer to terminate an employee’s employment or refuse to hire an individual because of the individual’s handicap if the person is qualified to perform the essential functions of the position with reasonable accommodation, unless the employer can demonstrate the accommodation required would impose an undue hardship on the employer’s business. The court found that Barbuto qualified as a handicapped individual in light of her Crohn’s disease and in light of her allegation that she was qualified to perform the essential functions of the position with a reasonable accommodation, with the accommodation being a waiver of the company’s policy barring employment by any person who tests positive for marijuana. ASM argued that she failed to state a claim, however, because (1) the only accommodation Barbuto sought – her continued use of medicinal marijuana – was a federal crime, which is unreasonable on its face, and/or (2) even if she were a qualified handicapped person, she was terminated from employment for failing a drug test, not due to her handicap.
With respect to ASM’s first argument, the court explained that ASM still had a duty to engage in the interactive process under Massachusetts law to determine whether there were alternative accommodations that would not violate federal policy. If there was no viable alternative, ASM had the burden to prove under Massachusetts law that use of medicinal marijuana would cause an undue burden on its business in order to justify refusing to make an exception to its policy against marijuana use. The court noted that refusal to engage in the interactive process alone is sufficient to support a claim of discrimination under Massachusetts law, provided that there is a reasonable accommodation available to enable the claimant to be a “qualified handicapped person.” Aside from the interactive process violation, the court rejected ASM’s argument that use of marijuana is per se unreasonable because the Massachusetts statute authorizing the use of medicinal marijuana makes the use of marijuana no different than using any other prescribed medication and, where marijuana is the most effective medication for treating a debilitating condition, an exception to a company policy prohibiting the use of marijuana is reasonable on its face. The court bolstered this conclusion by noting that the marijuana act stated that no patient shall be denied “any right or privilege” on the basis of the patient’s marijuana use. The court further noted that ASM’s argument about federal policy was not proper because, under federal policy, only Barbuto risked punishment for using marijuana, and the company did not.
The court also rejected ASM’s second argument, comparing the company’s policy prohibiting marijuana use to a policy prohibiting any medication and terminating a diabetic employee for taking insulin. The court explained that an employee taking marijuana consistent with a doctor’s prescription is comparable to an employee taking any other medication in response to a doctor’s prescription and applying the policy prohibiting marijuana use effectively denies a handicapped employee from utilizing a reasonable accommodation to perform his/her job.
The court went on to comment that by allowing Barbuto’s claim to survive dismissal at this stage did not mean that she would prevail at trial or even at summary judgment. For example, the court noted that the employer might be able to demonstrate that continued use of marijuana would impair the employee’s job performance or pose a significant safety risk that is unacceptable. Similarly, the court noted that an undue hardship may be established if, for example, the employer can show the employee’s marijuana use would violate the company’s contractual or statutory obligations. Lastly, the court went on to find that the marijuana statute did not include a private right of action for employment discrimination and the employee’s statutory remedy for discrimination in this instance would be based only on statute prohibiting handicapped discrimination.
In Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-CV-01938(JAM), 2017 WL 3401260 (D. Conn. Aug. 8, 2017), the United States District Court for the District of Connecticut similarly ruled that an employee may not be discriminated against for using medicinal marijuana, but this court analyzed whether federal law preempts the Connecticut law that prohibits employers from firing or refusing to hire individuals who use marijuana for medicinal purposes. The general fact pattern in Noffsinger is similar to that in Barbuto in that the employee who used medicinal marijuana failed a drug test and her job offer was rescinded as a result.
In Noffsinger, the company argued that the Controlled Substances Act, Americans with Disabilities Act, and Food, Drug and Cosmetic Act all invalidate Connecticut’s Palliative Use of Marijuana Act (“PUMA”), which protects individuals from termination or being denied job offers for using medicinal marijuana. Specifically, SSC Niantic Operating Company (“SSC”) argued that “obstacle preemption” applied, meaning that PUMA “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The fact that there is tension between federal and state law is not sufficient to establish obstacle preemption; rather, there must be an actual conflict and it must be a “sharp one” with an overriding federal purpose and objective. The court proceeded to conduct an in-depth analysis of each of the federal statutes and ultimately concluded that no conflict existed to justify federal preemption. Therefore, the court ruled that Katelin Noffsinger stated a claim upon which relief could be granted and denied SSC’s motion to dismiss with respect to Noffsinger’s claim under PUMA (the court’s analysis with respect to the other counts is beyond the scope of this post).
The decisions in Barbuto and Noffsinger are significant because they may be the start of a trend among courts to recognize causes of action that protect employees from adverse employment actions for using medicinal marijuana. Indeed, for many years, companies generally have been able to rely on the fact that it is against federal law to use marijuana and, therefore, they did not have to tolerate its use by employees. While circumstances may arise where medicinal marijuana use may not be protected, such as when an employee’s job duties include driving a company vehicle and the marijuana impairs the employee’s ability to drive, employers are going to have to handle situations involving medicinal marijuana on a case by case basis while monitoring developments in this area of the law, as these outcomes will continue to be driven by state law.