Massachusetts Supreme Judicial Court Rules in Favor of Employee Terminated for Use of Medical Marijuana

The Massachusetts Supreme Judicial Court recently ruled in Barbuto v. Advantage Sales & Marketing LLC et all, a case that questions an employer’s obligation to make accommodations for an employee’s off-site use of marijuana for medical purposes under the Massachusetts Anti-Discrimination and Medical Marijuana statutes.  In the ruling, the court decided that an employee may proceed with a claim of handicap discrimination after being terminated from employment based on a positive workplace drug test result for her off-site use of medical marijuana.

The employee in the case started a new job and explained her use of marijuana in treatment of her Crohn’s Disease to her employer when asked to submit to a drug test.  She was terminated after failing the test.  The employer based its termination decision on reasoning that they follow federal law, under which marijuana, for any use, is illegal, rather than state law. The employee then sued alleging violations of the Massachusetts Anti-Discrimination law and the state Medical Marijuana law, as well as alleging claims of invasion of privacy and violation of public policy.  The employee argued that she “should not be faced with the cruel choice of treating her disability or earning a livelihood.”  Specifically, she pled six claims:

(1) handicap discrimination in violation of G. L. c. 151B, § 4 (16);

(2) interference with her right to be protected from handicap discrimination in violation of G. L. c. 151B, § 4 (4A);

(3) aiding and abetting the employer in committing handicap discrimination in violation of G. L. c. 151B, § 4 (5);

(4) invasion of privacy in violation of G. L. c. 214, § 1B;

(5) denial of the “right to privilege” to use marijuana lawfully as a registered patient to treat a debilitating medical condition in violation of the Medical Marijuana Act; and

(6) violation of public policy by terminating her employment for lawful use of marijuana for medicinal purposes.

The Superior Court dismissed all of the claims except invasion of privacy.  Ms. Barbuto then appealed to Massachusetts highest court, the Supreme Judicial Court, and oral arguments were heard. The Massachusetts Commission Against Discrimination (MCAD) also filed a brief arguing that the Medical Marijuana statute is meant to be liberally construed in order to promote equal opportunities in employment.

In reversing the lower court’s decision to dismiss the claims, the court noted the following, “Under Massachusetts law, as a result of the [medical marijuana] act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.”  The court also said “[w]here, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.”

Advantage Sales and Marketing (ASM), the employer in the case, argued that they should be able to take steps, including termination, to ensure a drug-free workplace, especially since under federal law, marijuana, for any use, is against the law.  As such, ASM argued it had no obligation to permit an accommodation for such use.

In response to the employer’s argument, the court noted “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 court went further in discussing the extent the employer is obligated for an accommodation in the form of off-site use of medical marijuana by stating that the employer is, in fact, obligated to participate in the interactive process to explore whether there are any alternative, equally-effective medications that could be used that would be in compliance with the employer’s drug policy.  Specifically, the court said “[a] qualified handicapped employee has a right under G.L. c. 151B, § 4(16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.”

According to the ruling, the failure to explore a reasonable accommodation is sufficient in itself to “support a claim of handicap discrimination provided the plaintiff proves that a reasonable accommodation existed that would have enabled her” to perform the essential functions of the job.  Where no effective alternative exists, the employer then has the burden of proving that the employee’s use of medication would cause an undue hardship to the business to justify the employer’s refusal to make an exception to the drug policy.

The court did note a significant departure in their reasoning when it comes to “safety sensitive” positions or in situations where such use would violate an employer’s contractual or statutory obligations.  If an employer can prove that the continued use of medical marijuana would impair the employee’s performance or pose an “unacceptably significant” safety risk to the public, the employee, or others, he or she would meet the burden to establish that the employee’s use of medical marijuana is not a reasonable accommodation, as it would impose undue hardship on the business.  The court made specific note to the transportation industry as an example.  As such, in the instances where an employer is dealing with safety sensitive positions, they may be able to show an unacceptable safety risk, thereby causing an undue hardship to the business.

With the court’s reversal of the dismissed claims, the plaintiff may now pursue her disability-related claims, along with her invasion of privacy claim in Superior Court.  As for Massachusetts employers, while it may not be the guidance they were looking for, they now have specific direction as it relates to medical marijuana accommodations in the workplace.  They must engage in the interactive process to accommodate an employee’s lawful use of medical marijuana and provide a reasonable accommodation, including permitting the off-site use of medical marijuana, unless such use can be proven to result in an undue hardship to their business.

Hire Image always recommends you consult with legal counsel when defining and implementing a drug screening program.

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