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A registered medical marijuana user who was fired by her employer for failing a drug test can proceed in state court with her disability discrimination claim, the Massachusetts Supreme Judicial Court ruled.

It's a groundbreaking case in Massachusetts that will probably have implications outside the state, according to Matthew Fogelman of Fogelman & Fogelman in Boston and New York City and Adam Fine of Vicente Sederberg in Boston. Fogelman and Fine served as co-counsel for the plaintiff in the case (Barbuto v. Advantage Sales and Marketing, LLC, No. SJC-12226, Mass. (July, 17, 2017)).

The state high court has said that marijuana used for medicinal purposes is just as lawful as other medications used by employees and should be treated as such, Fogelman said. If someone is taking medication and can perform the essential job functions; is not impaired on the job; and is ready, able and willing to work, the employer must engage in an interactive process and provide a reasonable accommodation unless that accommodation would cause an undue hardship for the employer, he added.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

The Court's Decision



The ruling is the first of its kind from a state's highest court, explained Dale Deitchler, a management-side attorney with Littler in Minneapolis.

As in many other states, the Massachusetts medical marijuana law doesn't expressly provide employment-related protections for marijuana users. But the Massachusetts Supreme Judicial Court focused on language in the medical marijuana act stating that lawful users can't be "denied any right or privilege" for such use.



Under the state's disability discrimination law, employees have the right to seek a reasonable accommodation.



"If a medical marijuana accommodation was deemed a facially unreasonable accommodation, the employee would be denied a 'right or privilege' under the law solely because of medical marijuana use," the court said.

The employee in the case, Cristina Barbuto, used marijuana off duty to help manage symptoms caused by Crohn's disease—a gastrointestinal condition that can be debilitating. She said that she used it two or three times per week, in the evening after work, and never before or during work hours.

Among other things, the employer claimed that all marijuana use is a federal crime—therefore an accommodation for such use is facially unreasonable. But the court disagreed.

"Under Massachusetts law, as a result of the 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 said, adding that the employer should have explored with Barbuto whether there was an alternative medication she could use that isn't prohibited by the company's drug policy.

The court denied the employer's motion to dismiss the claim but has yet to make a ruling on the merits of the case.

Michael Clarkson, an attorney with Ogletree Deakins in Boston who represented the employer, said the employer is still weighing its options. "We have not yet had the opportunity to litigate the plaintiff's … claim on the merits, but we are confident that our client acted in accordance with the law."

Implications

Fine noted that the case is narrow: It involves an employee's medical marijuana use outside the workplace with no impairment on the job, and it doesn't involve a safety-sensitive position. But he hopes the ruling will cause employers to re-evaluate their drug testing policies, consider their reasons for testing and understand the importance of engaging in an interactive process—particularly for medical marijuana use.

Most state courts that have ruled on the issue have sided with the employer. For example, the Colorado Supreme Court ruled in 2015 that as long as marijuana is illegal under federal law, the state law does not apply. Under federal law, marijuana is still classified as a Schedule I drug with no accepted medical use.

However, a Rhode Island Superior Court judge recently held that an employer couldn't refuse to hire a medical marijuana cardholder who revealed that she would fail a pre-employment drug test.

[SHRM members-only multistate coverage: Multistate Employer Resources]

As for the Barbuto ruling, it is only binding in Massachusetts, but it opens the door for similar decisions by other state high courts, Deitchler said. Almost every state has a disability discrimination law, and other state supreme courts could potentially find the Massachusetts court's reasoning persuasive, he added.

Tips for Employers

The Massachusetts court made it clear that employers don't have to accommodate on-duty use or impairment, even by registered medicinal users.

For lawful off-duty use, Deitchler said, employers need to make sure they are engaging in an interactive process. "Does medical marijuana use inhibit the employee's ability to perform the job or pose a significant safety risk?" he asked. If so, it may pose an undue hardship for the business.

Employers may want an occupational health specialist to perform an assessment, and they may want to work with the employee's doctor to determine a reasonable accommodation, he added.

Deitchler said employers can create acknowledgement forms that are tailored to state law. Employees should acknowledge that medical use is genuine and that they are not going to use onsite or perform work while impaired. Whether such an acknowledgement will hold up in court isn't clear, but it is better to make the effort and try to curb workplace safety risks, he added.

Fogelman said employers should evaluate why they are testing for marijuana at all. He noted that it may be required or recommended for certain safety-sensitive fields or industries, but it might not make sense for other workplaces or jobs.

In Colorado, where medicinal and recreational marijuana use are legal, many employers are dropping marijuana from their drug-testing panel altogether, Fine said. "As the stigma on marijuana use declines, we are seeing a national trend where employers are focused on impairment instead of general drug testing," he said, noting that a focus on impairment is a better indicator of what employers are really concerned about: performance issues and safety risks in the workplace.