On July 17, 2017, the Massachusetts Supreme Judicial Court ruled that an employee fired for using medical marijuana could pursue her claim of handicap discrimination under state law. This is the first decision by any state’s high court to recognize a duty to engage in the interactive process with a medical marijuana user to determine whether a reasonable accommodation exists to allow the individual to work.

Under the federal Controlled Substances Act, marijuana is categorized as a Schedule I controlled substance, meaning that it has no recognized medical value and a high potential for abuse. Other federal statutes, like the Drug-Free Workplace Act, impose obligations on certain employers to ensure employees do not possess or use marijuana in the workplace. Although illegal under federal law, Massachusetts passed a ballot initiative in 2012 legalizing medical marijuana for therapeutic use by registered patients with qualified medical conditions upon written certification by a physician.

Barbuto Decision

The case, Barbuto v. Advantage Sales & Marketing LLC, involves an employee who was told by a supervisor that she would have to take a drug test after accepting an entry-level position with the company. The employee admitted that she would test positive for marijuana because she suffers from Crohn’s disease and had been medically prescribed marijuana to treat it. She further explained that she did not use marijuana daily, nor would she consume it before or at work. The supervisor told her that her marijuana use should not be an issue. However, when her drug test came back positive, the company fired her pursuant to its drug policy, stating, “We follow federal law, not state law.” The employee subsequently sued, claiming, among other things, violations of Massachusetts’ anti-discrimination law and Medical Marijuana Act, and alleging that her employer engaged in disability discrimination by failing to accommodate her medical marijuana use.

On appeal, the Supreme Judicial Court affirmed a lower court’s dismissal of the employee’s claim for wrongful termination in violation of public policy, as well as finding that there is no implied statutory private cause of action under the state’s Medical Marijuana Act. However, the court reversed the trial court’s dismissal of the handicap discrimination claim, finding that the employee adequately alleged a claim of disability discrimination by showing that she had a disability (Crohn’s disease), she experienced an adverse employment action, and she was capable of performing the essential functions of her job with an accommodation – namely, an exception to the company’s drug policy to permit medical marijuana use.

The court rejected the employer’s argument that accommodation of medical marijuana is per se unreasonable because its possession and use are illegal under federal law. Rather, the court countered that the “only person at risk of federal criminal prosecution for her possession of medical marijuana is the employee.” The court also noted that even if the requested accommodation was unreasonable, the employer had an obligation to engage in the interactive process to explore whether equally effective alternative medications permitted under the policy were available. The court held that a failure to explore alternative medications alone is sufficient to support a handicap discrimination claim.

Reasonable Accommodation or Undue Hardship?

Massachusetts employers are not without relief. The court underscored that employers will still have the opportunity to show that medical marijuana use is not a reasonable accommodation because it would pose an undue hardship on their businesses. The court highlighted common circumstances through which employers can show undue hardship:

  • Medical marijuana use impairs the employee’s work performance.
  • Medical marijuana use poses an unacceptable significant safety risk to the public, the employee or other employees.
  • Medical marijuana use violates the employer’s contractual or statutory obligations under federal drug testing standards – i.e., compliance with the Drug-Free Workplace Act or Department of Transportation regulations – and thereby jeopardizes its ability to perform its business.

Notably, the court stressed that employers may still prohibit employees from coming to work under the influence of marijuana or from using it at the workplace. Neither are employers required to accommodate recreational use of marijuana.

Proceed with Caution

As a result of Barbuto, Massachusetts employers cannot outright deny a request to accommodate medical marijuana users, regardless of a facially neutral drug policy, but rather must engage in the interactive process. While the Barbuto decision does not have precedential value outside of Massachusetts, the decision could change the tide of medical marijuana defenses. Other states in which medical marijuana use is legal and that have state law disability anti-discrimination statutes include California, Colorado, Michigan, Montana, New Mexico and Washington. While some jurisdictions may decide to stay the course of not requiring accommodations for medical marijuana use, others may follow Massachusetts’ lead and require employers to at least engage in the interactive process. Because this area of law continues to evolve, employers should consider consulting experienced legal counsel to ensure that their drug policies comply with all applicable laws.