In 2012, four years before voters in Massachusetts approved the initiative petition legalizing recreational marijuana use, Massachusetts voters approved an initiative petition legalizing the medicinal use of marijuana. On July 17, 2017, the Massachusetts Supreme Judicial Court (SJC) issued a decision affording protections to some employees who use medical marijuana consistent with that law.
In Barbuto v. Advantage Sales and Marketing, LLC, the SJC considered whether an employer violated M.G.L. c. 151B, § 4, the Massachusetts anti-discrimination law, when it terminated the employment of an employee for off-site use of medical marijuana. The Barbuto case arose from Christina Barbuto’s application for employment in an entry level position with Advantage Sales and Marketing, LLC (Advantage) in which she would work at supermarkets promoting Advantage customers’ products. According to the allegations in her complaint, having received a certification from her physician, Ms. Barbuto used small quantities of marijuana at her home two or three times per week, usually in the evening, to alleviate some of the effects of Crohn’s Disease and irritable bowel syndrome. Ms. Barbuto did not use marijuana at the workplace and did not report to work in an intoxicated state. In connection with her application for employment with Advantage, Ms. Barbuto was required to take a drug test. Ms. Barbuto failed the drug test, and after working for one day, was terminated from employment. Ms. Barbuto’s complaint alleged that Advantage’s representative told her that it did not matter whether she used marijuana for medical reasons, because “we follow federal law, not state law.”
Ms. Barbuto sued, alleging handicap discrimination. She also claimed that (1) she had been subject to an invasion of privacy, (2) she had a right under the medical marijuana law to use medical marijuana independent of the prohibition on handicap discrimination, and (3) the termination of her employment violated public policy. Her claims of handicap discrimination, violation of the medical marijuana law, and violation of public policy were dismissed by a Superior Court judge, leading to the appeal to the SJC.
Permitting Use of Medical Marijuana as a Reasonable Accommodation
Pursuant to M.G.L. c. 151B, § 4, a Massachusetts employer is required to provide a “qualified handicapped person” with a “reasonable accommodation” if necessary to enable the individual to perform the essential functions of a position, unless the employer demonstrates that the required accommodation would impose an “undue hardship” on the employer’s business. In Barbuto, the SJC concluded that it is not facially unreasonable to allow a qualified handicapped person to use medical marijuana to alleviate or manage a medical condition. The court rejected the employer’s argument that permitting the use of medical marijuana is facially unreasonable because its use is a federal crime. The court explained that the use of medical marijuana would not create criminal risks for the employer. The only person at risk of federal prosecution for possession of marijuana is the employee.
Response by an Employer
The SJC noted that an employer in such circumstances could engage in an interactive process to determine if there were equally effective medical alternatives that would be consistent with a drug policy prohibiting employment of someone with a positive test result for marijuana. An employer could also attempt to demonstrate that permitting the off-site use of medical marijuana would cause an undue hardship to its business. An employer could do so by showing that continued use of medical marijuana would pose an “unacceptably significant” safety risk. Another possible basis for undue hardship could be grounded in a “contractual or statutory obligation,” such as the requirement that transportation employers comply with the Department of Transportation’s regulations prohibiting marijuana use by safety-sensitive employees.
The SJC also noted that the medical marijuana law specifically does not require “any accommodation of any on-site medical use of marijuana in any place of employment.”
Since the Barbuto case reached the SJC through an appeal of a decision allowing the employer’s motion to dismiss at the outset of the litigation, Advantage may still attempt to show that permitting the off-site use of medical marijuana would impose an undue hardship.
While the SJC concluded that Ms. Barbuto’s handicap discrimination claim was viable, it rejected other claims that she raised. Specifically, it rejected the arguments that the medical marijuana act created an implied right to sue an employer under the act based on interference with the lawful use of medical marijuana. It also rejected the argument that a termination of employment in these circumstances would support a wrongful termination claim independent of a handicap discrimination claim. The SJC did not rule on the invasion of privacy claim.
As a result of Barbuto, a positive result for marijuana in a drug test cannot necessarily be treated by a Massachusetts employer as a bar to employment, if the applicant is lawfully using medical marijuana. By the same token, a positive test for marijuana by an applicant who claims a medicinal need may still lead to a permissible decision to reject the applicant, if, after engaging with the applicant in the interactive process, the employer determines that there is an equally effective medical alternative for the applicant which the applicant rejects, or the employer can demonstrate that employment of someone who uses medical marijuana poses an “unacceptably significant” safety risk or otherwise would impose an undue hardship on the employer. Nothing in Barbuto gives legal protection to an individual who uses marijuana other than for proper medicinal purposes and tests positive in an employer’s drug screen.
For questions on Barbuto’s effects on employer obligations, please contact a member of Goodwin’s Labor & Employment Practice.
Bradford J. SmithPartner
Robert M. HalePartnerChair, Employment
Jennifer Merrigan FayPartner
Christina S. BitterCounsel