Employers in Massachusetts May Be Liable for Firing Employees Due to Medical Marijuana Use

On July 17, 2017, the Massachusetts Supreme Judicial Court (SJC), in a unanimous 6-0 decision, ruled that an employee may pursue a disability discrimination claim against an employer who terminated her for testing positive for off-duty use of medical marijuana. This is a groundbreaking decision, as it is the first decision by a state’s highest court to recognize a duty to accommodate medical marijuana users at work.

In Barbuto v. Advantage Sales & Marketing, LLC, the SJC held that in accordance with Massachusetts’ medical marijuana law, denial of off-duty marijuana use as a reasonable accommodation denies disabled employees their statutory “right or privilege” to a reasonable accommodation for their disability.1 The court recognized that the use of legally prescribed marijuana is just as lawful as the use of any other prescription medication.

In 2012, Massachusetts’ voters approved the Medical Marijuana Act. In 2015, the plaintiff, Cristina Barbuto, was offered and accepted an entry-level position with Advantage Sales and Marketing. When Ms. Barbuto was notified that she would be required to take a drug test she told her employer that she would test positive for marijuana because, pursuant to the Medical Marijuana Act, her doctor had prescribed marijuana to treat her Crohn’s disease. Ms. Barbuto clarified to her employer that she did not use medical marijuana shortly before or during work hours. Although Ms. Barbuto was initially informed that it would not be a problem, the company ultimately terminated her employment due to her testing positive for marijuana and stated that they followed federal, not state law in that regard.

The argument that employees could not sue for discrimination because marijuana is still illegal under federal law was rejected by the SJC. Chief Justice Ralph Grant explained that marijuana’s illegality under federal law does not make it per se unreasonable to permit off-duty medical use as an accommodation under Massachusetts’ Anti-Discrimination law. Thus, employers are not allowed to enforce strict no-drug policies against employees whose doctors have prescribed marijuana to treat their illness.

The SJC did provide employers with some guidance on evaluating requests for reasonable accommodation. The court noted that employers are not required to make any accommodation if they can prove that such an accommodation causes an undue hardship to their business. Examples include safety concerns with employees who work with machinery, and countervailing contractual or statutory obligations to conduct testing for marijuana, such as those imposed by Department of Transportation regulations. Additionally, employers are not required to permit on-site medical use of marijuana as an accommodation or allow employees to work under the influence of marijuana. As a consequence of the court’s decision, however, employers subject to its jurisdiction should, at a minimum, engage in the interactive process with disabled employees to determine whether a reasonable accommodation would be possible.

The decision in Barbuto v. Advantage Sales & Marketing, LLC, while decided under Massachusetts’ state law, may prove to have broader significance if courts in other states look to it for guidance when interpreting their own medical marijuana laws. Clients should always be aware of the ever-evolving legal developments in the states in which they do business, both with respect to medical and recreational marijuana use. Arizona, for example, is one of the states whose laws prohibit the termination of medical marijuana card-holding employees, who are otherwise qualified under the act, simply for testing positive for marijuana, unless the employer can prove the employee used the drug at work or was impaired by such use while at work.2

1 Barbuto v. Advantage Sales and Mktg., LLC, SJC-12226, 2017 WL 3015716 (Mass. July 17, 2017).
2 Ariz. Rev. Stat. Ann. § 36-2813