We have previously reported on the challenges presented to Massachusetts employers from the legalization of medical marijuana. We noted the possibility that Massachusetts courts would break new ground in requiring employers to accommodate an employee’s usage (outside the workplace) of medically prescribed marijuana. On July 17, 2017, in an eagerly awaited decision, the Massachusetts Supreme Judicial Court ruled that the reasonable accommodation requirements under the Massachusetts anti-discrimination laws do apply to the off-duty use of medical marijuana.
In Barbuto v. Advantage Sales & Marketing, LLC, the plaintiff had applied for an entry-level job in a marketing company. After being informed that she would need to take a drug test, she disclosed that she would test positive because she was using medical marijuana to treat Crohn’s disease. A company representative told her that this should not be a problem, but, shortly after starting work, the company terminated her employment for testing positive for marijuana. The plaintiff filed a lawsuit against the company alleging, among other things, that she was disabled and that the company failed to reasonably accommodate the medical use of marijuana–in violation of Chapter 151B, the state analog to the federal Americans with Disabilities Act (ADA).
The majority of states have legalized the use of marijuana for medical purposes. The Massachusetts law, which became effective in 2013, provides limited guidance regarding employers’ obligations, simply stating that nothing in the law requires “any accommodation of any on-site medical use of marijuana” at work. This language left employers puzzling over whether the off-site use of medical marijuana might be protected under state law, which was the issue in the Barbuto case.
Other states have generally found that employers are free to terminate employees who use marijuana for medical reasons. Similarly, under federal law, courts have unanimously held that the ADA does not protect medical marijuana users or provide them a right to accommodation. The ADA has a statutory exclusion for current users of illegal drugs and marijuana remains an illegal controlled substance under federal law.
In analyzing Massachusetts law, the SJC came out on the other side, holding that the disability discrimination laws apply to individuals using medical marijuana for qualifying disabilities and can, in some cases, require employers to excuse failed drug tests. The SJC faulted Barbuto’s employer for not discussing with her whether there were other medications she could take that would be as effective as medical marijuana. The SJC also faulted the employer for failing to evaluate whether the use of medical marijuana could be accommodated without posing safety or other issues.
As a result of the ruling in Barbuto, when confronted with an individual using medical marijuana who is seeking accommodation, employers should engage in the same type of interactive dialogue that they use when considering other accommodation requests.
We will continue to monitor and report on legal developments in this 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 Laurie F. Rubin, the author of this alert, at 617 456 8020 or [email protected], or Daniel S. Tarlow, the head of Prince Lobel’s Employment Law Practice Group, at 617 456 8013 or [email protected].