United States: Massachusetts SJC: Medical Marijuana Users May Be Safe From Employer Discrimination

Last Updated: August 2 2017
Article by Douglas Schwarz and Siobhan E. Mee

In a landmark decision that is likely to influence other states, a recent ruling in Massachusetts protects medical marijuana users against discrimination by their employers absent undue hardship.

In Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court (SJC) held that an employee who uses medical marijuana may claim handicap discrimination against an employer for failing to waive mandatory drug testing for marijuana use absent an undue hardship to the employer's business.1 The SJC was not troubled by the fact that the employee's possession of marijuana is a violation of federal law. The court also made clear that where an employee alleges that a reasonable accommodation would enable the employee to perform the job, an employer's failure to consider the proposed accommodation can itself violate the law. This LawFlash describes the legal backdrop of the case and the ruling, and identifies key implications for employers.

Legal Backdrop

In 2012, Massachusetts voters approved an initiative petition, "An Act for the Humanitarian Medical Use of Marijuana" (the Medical Marijuana Act), decriminalizing the use of medical marijuana by qualifying patients. The Medical Marijuana Act protects a "qualifying patient" suffering from a "debilitating medical condition" from "arrest or prosecution, or civil penalty, for the medical use of marijuana."2 The Medical Marijuana Act also provides that "[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions."3

Consistent with state laws across the country, Massachusetts law protects individuals from adverse employment actions on the basis of handicap. Specifically, an employer may not dismiss from employment or refuse to hire "any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation" unless the accommodation would impose an undue hardship on the employer's business.4

The SJC's Decision

In 2014, Advantage Sales and Marketing (ASM) offered an entry-level position to Cristina Barbuto. As part of the offer of employment, ASM required Barbuto to submit to a mandatory drug test. Barbuto explained to ASM that she suffers from Crohn's disease, for which she has a medical marijuana prescription from her physician, and that she would test positive for marijuana if tested. After initially assuring her a positive test result would not be a problem, ASM terminated Barbuto following her first day of work for testing positive for marijuana, explaining that the company "follow[s] federal law, not state law."

The SJC determined that ASM was required to participate in the interactive process of determining whether there was a reasonable accommodation for Barbuto's prescription marijuana use. As a basis for its decision, the court looked to the language of the Medical Marijuana Act, which provides that patients shall not be denied "any right or privilege" on the basis of their medical marijuana use. The SJC noted that a handicapped employee in Massachusetts has a statutory "right or privilege" to a reasonable accommodation under Massachusetts General Law Chapter 151B, Section 4. Where an employer's policy prohibiting the use of marijuana is applied to an employee who is being treated with marijuana for a medical condition, "the termination of the employee for violating that policy effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination."5

Further, the court held that the employer's failure to participate in the interactive process alone gave rise to a claim for disability discrimination where the employee alleged ASM could have reasonably accommodated her by waiving the no-marijuana policy. The SJC drew an analogy to a scenario where an employer had a drug policy prohibiting the use of some other medication lawfully prescribed by a physician. In that instance, the employer would still have a duty to engage in an interactive process with the employee to determine whether there were an equally effective medical alternative to the prescribed medication, the use of which would not be in violation of the employer's policy.

Per the SJC, the fact that the possession of medical marijuana is a violation of federal law is not a defense and does not make it per se unreasonable as an accommodation; the court noted that many states have enacted laws permitting the use of medical marijuana and that only the employee, not the employer, would be at risk of federal criminal prosecution.

No doubt aware that its decision would require employers to reassess their programs and policies, the court outlined potentially viable "undue hardship" defenses for employers in medical marijuana cases, offering the following examples:

  • 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 other employees.
  • The continued use of medical marijuana would violate the employer's contractual or statutory obligation, such as with transportation employers subject to the United States Department of Transportation's drug testing requirements.

Implications for Employers

The SJC's decision in Barbuto has significant implications for employers with mandatory drug testing and other drug and alcohol policies. If an employee who uses medical marijuana asks an employer to waive its policy prohibiting marijuana use, the employer should at minimum engage the employee in—and document—an interactive process to determine whether a reasonable accommodation would be possible or would create an undue hardship for the employer's business.

An employer may still avoid having to provide the requested reasonable accommodation if it can prove that it would cause an undue hardship on the employer's business interests, such as interference with compliance with a statutory obligation, or if continued use would pose an "unacceptably significant" safety risk. The SJC also noted that the Medical Marijuana Act does not require any employer to permit on-site marijuana use as an accommodation to an employee.6

Although the SJC's ruling applies only to employers governed by Massachusetts law, courts in other jurisdictions with medical marijuana laws that protect employees' "rights or privileges" may look to the Barbuto decision for guidance. Maine,7 New York,8 Minnesota,9 and Rhode Island10 each have marijuana laws that protect a qualifying patient's rights or privileges. 

Beyond the marijuana issue, Barbuto makes clear that it is necessary for an employer to engage in and document an interactive process to determine whether a reasonable accommodation exists whenever an employee indicates that he or she has a disability and needs an accommodation.

Footnotes

1 Barbuto v. Advantage Sales and Mktg., LLC, SJC-12226, 2017 WL 3015716, at *1 (Mass. July 17, 2017).

2 2012 Mass. Acts ch. 369.

3 Id. at § 4.

4 Mass. Gen. Laws ch. 151B, § 4(16) (2016).

5 Barbuto, 2017 WL 3015716, at *7.

6 Id. at *7 n.10.

7 Me. Rev. Stat. tit. 22, § 2423-E (1) (2016).

8 N.Y. Pub. Health Law § 3369(1) (McKinney 2014).

9 Minn. Stat. §§ 152.22 et seq. (2016).

10 R.I. Gen. Laws 1952 § 21-28.6-4(a) (2017).

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

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