United States: Massachusetts Supreme Judicial Court Rules That Employers May Need To Accommodate Off-Duty Medical Marijuana Use

Seyfarth Synopsis: On July 17, 2017, the Massachusetts Supreme Judicial Court held that an employer could be liable under the Massachusetts Anti-Discrimination Act for disability discrimination by declining employment based on an individual's off-duty medical marijuana use.  This landmark decision runs contrary to the majority of courts in other states that have considered similar questions, given that marijuana continues to be an illegal drug under federal law.  Massachusetts employers with drug testing programs and drug-free workplace policies will need to reassess their policies and consider reasonably accommodating individuals' off-duty medical marijuana use as a result of this decision.

Marijuana use and possession are illegal under federal law.  Like heroin, marijuana is a Schedule I substance under the Controlled Substances Act, meaning it has no accepted medical use and it has a high potential for abuse.  Doctors cannot lawfully prescribe marijuana to patients under federal law.  Notwithstanding, on July 17, 2017, the Massachusetts Supreme Judicial Court (SJC) held that employers may have to allow employees to engage in off-duty use of marijuana for medical purposes.  In Barbuto v. Advantage Sales and Marketing, the SJC reasoned that tolerating off-duty medical marijuana use may be a "reasonable accommodation" of a disability under the Massachusetts anti-discrimination statute. 

Cristina Barbuto, a woman diagnosed with Crohn's disease and Irritable Bowel Syndrome, accepted an offer for an office job with Advantage Sales and Marketing.  According to Barbuto's complaint, the company sent her for a drug test.  Barbuto told the company that she would test positive for marijuana because she uses it to treat her loss of appetite due to her medical conditions.  She noted that she would never use marijuana during or before work.  A supervisor responded that Barbuto's marijuana use "should not be a problem."  After Barbuto completed her first day of work, however, the company terminated her employment for testing positive for marijuana, stating "we follow federal law, not state law."  Among other things, Barbuto's complaint alleges that the company (1) discriminated against her on the basis of her disability in violation of the Massachusetts Fair Employment Practices Law ("Anti-Discrimination Law"); (2) violated the Massachusetts law that authorizes qualified individuals to use marijuana for medical reasons, An Act for the Humanitarian Medical Use of Marijuana ("Medical Marijuana Act"); and (3) terminated her employment in violation of public policy.

The company moved to dismiss Barbuto's claims.  It argued that Barbuto's discrimination claims must fail because she was not a "qualified" handicapped person.  The company maintained that the only accommodation Barbuto requested--use of marijuana--is a federal crime, and therefore was facially unreasonable.  The company also argued that it terminated her employment not because of her handicap but rather because she failed a drug test that all employees must pass.  Regarding Barbuto's Medical Marijuana Act claim, the company argued that the law does not provide a private right of action, and that it merely decriminalizes medical marijuana use.  Relying on similar logic, the company argued that Barbuto's public policy claim must fail.  It asserted 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 and dismissed these claims.

The SJC disagreed with the trial court's conclusion that employers need not tolerate medical marijuana use as a reasonable accommodation under the Anti-Discrimination 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 Anti-Discrimination Law.  According to the SJC, 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, which many states deem to have an accepted use in treating certain medical conditions.  The SJC also concluded that, even if accommodating medical marijuana use were facially unreasonable, "the employer here still owed the plaintiff an obligation under Massachusetts the Anti-Discrimination Law], before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use."  Indeed, the SJC held that the 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.  The SJC reasoned that "where a handicapped employee needs medication to alleviate or manage the medical condition that renders her handicapped, and the employer fires her because company policy prohibits the use of this medication, the law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap."  In effect, the SJC refused to distinguish between Barbuto's disabilities and the treatment for the loss of appetite that she experiences because of them.

Notably, 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 also observed that its ruling "does not necessarily mean that the employee will prevail in proving handicap discrimination."  The SJC stated that the company could present evidence at summary judgment or trial to show that Barbuto'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.

The SJC agreed with the trial court's conclusions that (1) there is no private right of action under the Medical Marijuana Act, and (2) the Medical Marijuana Act does not give rise to a public policy claim.  The SJC reasoned that while the Medical Marijuana Act decriminalizes medical marijuana use, it is silent concerning whether an individual can sue an employer under the Act.  The Massachusetts Legislature was aware of its ability to create a private right of action, but it did not do so.  The SJC further held that it would not recognize a public policy claim given the statutory action available under the Anti-Discrimination Law.

The Barbuto decision departs from federal law regarding disability discrimination and the decisions from most courts in other states that have addressed similar claims.  Employers need not tolerate off-duty use of medical marijuana as an accommodation under the Americans with Disabilities Act ("ADA").  Under the ADA, an individual who uses illegal drugs is not a "qualified" disabled person because marijuana is illegal under the federal Controlled Substances Act, as noted above.  Relying on this rationale, at least in part, courts in other states have ruled largely in favor of employers.  In Barbuto, the SJC interpreted Massachusetts law to reach a different conclusion.

Because of the Barbuto decision, employers should audit their drug testing, hiring, and accommodation policies.  At a minimum, Massachusetts employers should engage in the interactive process before taking adverse action based on an applicant or employee failing, or making it known that he or she will fail, a drug test due to off-duty medical marijuana use.  Proactive employers may be able to avoid exposure and should consult with counsel before taking action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Wilson Elser Moskowitz Edelman & Dicker LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Wilson Elser Moskowitz Edelman & Dicker LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions