The (Not So) Changing Landscape for Marijuana in the Workplace

Client Alerts · January 4, 2017

Massachusetts voters have changed the landscape for the use of marijuana in the Commonwealth.  We previously reported on the implications for employers with respect to medical marijuana, and specifically, the possibility that employers might be required to accommodate off-duty prescribed use. Now, Massachusetts employers are faced with responding to their employees’ legal recreational use.  In this alert, we will update the situation for employers with respect to medical marijuana, and provide guidance for employers with respect to the newly legalized recreational usage.  The bottom-line is that, for now, the workplace rules for marijuana remain largely unchanged despite the expanded authorization of marijuana use outside of the workplace.

Medical Marijuana

The first Massachusetts court has weighed in on the issue of whether an employer is required to accommodate an employee’s off-site use of marijuana to treat a medical condition. Barbuto v. Advantage Sales and Marketing, LLC, et al., No. 15-02677 (Mass. Sup. Ct., 2016).

Plaintiff, Cristina Barbuto, was terminated by her employer, Advantage Sales and Marketing, LLC, after she tested positive for marijuana.  Barbuto suffers from Crohn’s disease and has a valid prescription to use marijuana to help manage her medical condition.  Following her termination, Barbuto filed a lawsuit against her former employer alleging, among other claims, disability discrimination under the Massachusetts anti-discrimination law (M.G.L. c. 151B).

To determine whether Barbuto’s former employer was required to accommodate her use of medical marijuana, the Superior Court began its analysis by reviewing the plain language of the Massachusetts Act for the Humanitarian Medical Use of Marijuana (the “Act”). The Superior Court determined that the Act contains no anti-discrimination provision and explicitly provides that an employer is not required to accommodate an employee’s use of marijuana at the worksite. Although the Act does not directly address off-site use of medical marijuana, it does provide that “[n]othing in this law requires the violation of federal law or purports to give immunity under federal law.”  While the use of medical marijuana is legal in Massachusetts, it remains illegal under federal law.  Next, the Superior Court looked to decisions in other states where medical marijuana is legal.  Both California and Colorado courts have held that employers are not required to accommodate an employee’s use of medical marijuana, because it remains illegal under federal law. Accordingly, the Superior Court concluded that Barbuto could not maintain a valid disability discrimination claim against her former employer for failing to accommodate her use of medical marijuana.

The Superior Court also rejected Barbuto’s claim that her termination violated the public policy of the Commonwealth.  The Court found that the medical usage law does not establish a public policy against employer enforcement of drug-free workplace rules.

In short, the first Massachusetts court to address the issue has determined that there is no obligation to accommodate off-duty use of medical marijuana. The Barbuto case has now moved onto the Supreme Judicial Court, which is expected to make a definitive ruling in 2017 on this important topic.

Recreational Marijuana

The Regulation and Taxation of Marijuana Act (the “Marijuana Act”) went into effect on December 15, 2016.  Although the Marijuana Act allows adults in Massachusetts to possess and use marijuana for recreational purposes, it explicitly provides that it does not “[r]equire an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”  With this pro-employer language embedded in the statute, and given the courts’ unreceptiveness so far to workplace protections for even medical marijuana, it seems clear that employers in Massachusetts can (certainly, for now) continue to enforce drug-free workplace policies that would prohibit use of recreational marijuana on or off-duty.

Word of Caution about Drug Testing

While the story so far is quite positive for Massachusetts employers with respect to retaining the flexibility to terminate applicants and employees who test positive for use of marijuana, there are still important legal (i.e., privacy related) restrictions on the use of drug testing in the first place.  While pre-hiring testing is almost always permitted, employers who seek to test current employees generally need to have a safety-related reason (if the testing is random) to do so or test based on a reasonable suspicion of working under the influence.

The full nuances of drug testing policies and procedures is beyond the scope of this alert. Prince Lobel would be happy to consult with you about your drug testing policies if you have any questions or concerns.

We will continue to monitor and report on legal developments in the rapidly changing area.  If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Daniel S. Tarlow, the author of this alert and Chair of Prince Lobel’s Employment Law Practice Group at 617 456 8013 or dtarlow@princelobel.com.