On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”) held that an employee fired for a failed drug test may pursue a disability discrimination claim based on her use at home of medical marijuana. Although the Barbuto v. Advantage Sales & Marketing (ASM) decision could have a substantial impact on how Massachusetts employers handle positive tests for medical marijuana, a careful reading of the decision suggests the Court’s decision might not be as far reaching as the headlines suggested. Notwithstanding the SJC’s decision, the scope of Massachusetts employers’ obligations with regard to accommodating an employee’s at home use of medical marijuana remains uncertain.
Christine Barbuto uses, legally under Massachusetts law, medically prescribed marijuana in the evenings to manage the symptoms of her Crohn’s disease. She disclosed her marijuana use to ASM after applying for an entry-level position and being told about ASM’s pre-employment drug screen. She explained that she used a small amount of cannabis every other evening as prescribed by her doctor and stated that she would likely test positive. The hiring supervisor initially told her that her legal use of the drug would not be an issue, even calling her at home to reassure her.
ASM hired Barbuto, but after one day of work, it fired her when the drug test came back positive. After being informed of her firing, Barbuto reminded the Human Resources representative that state law permitted her off-duty marijuana use. The representative told Barbuto, “We follow federal law, not state law.” In the past, this has been a good rule to follow.
Barbuto filed a charge of discrimination with the Massachusetts Commission Against Discrimination and later a lawsuit in the Massachusetts Superior Court. She sued both the employer and the Human Resources representative.
In May of 2016, the Superior Court dismissed most of Barbuto’s complaint, including her claim that she was entitled to an exception under the employer’s drug testing policy as a reasonable accommodation for her disability. The Superior Court ruled that the company had no reason to accommodate Barbuto with her use of marijuana because the use of marijuana is “still illegal under Federal law.” The Court cited the Coats v Dish Network Colorado case (which we have shared with you in the past) and said that even when recreational cannabis is legal in the state, it does not override Federal law. Barbuto appealed.
The SJC overturned in part the Superior Court’s decision and held that Barbuto can pursue her disability discrimination claim based on her off-duty use of medical marijuana. In the unanimous 6-0 decision, the Court ruled that if a doctor determines that medical marijuana is the most effective treatment for a debilitating condition, employers must consider an exemption to their drug policy as a “reasonable accommodation” to the employee.
Chief Justice Ralph Gants wrote that “the use and possession of medically prescribed marijuana by a qualified patient is as lawful as the use and possession of any other prescribed medication,” and thus “employers cannot use blanket anti-marijuana policies to fire workers who have had cannabis prescribed by a licensed physician.” The Court added that if a doctor concludes medical marijuana is the most effective treatment, “an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation. The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation.” The Court relied on the specific language of the Massachusetts Medical Marijuana Act, which provides that patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. Because disabled employees have a statutory “right or privilege” to a reasonable accommodation, any ruling other than permitting off-duty marijuana use as a reasonable accommodation would be a violation.
The SJC’s decision could be the first of a line of cases upholding an employee’s right to use marijuana outside of work – at least for medical reasons. (Use of recreational marijuana was not at issue in this decision). Or, the case could turn out to remain an outlier. Notably, in Barbuto, the SJC commented in a footnote that the defendants (for reasons not clear in the decision) “waived the argument that Federal preemption requires the conclusion that an employee’s use of medical marijuana is facially unreasonable as an accommodation. We note that the Oregon Supreme Court rested its decision that an employee’s use of medical marijuana was not a reasonable accommodation under the State’s disability act on this ground.” Had defendants not waived the federal preemption argument, the SJC may very well have reached a different outcome. We expect other employers to argue this constitutional preemption defense to any future claims.
The federal courts in the First and Second Circuit Court of Appeals (covering all of New England, Puerto Rico and New York) have not yet addressed whether federal law preempts and, therefore, voids the employee protections provided under the various state marijuana laws. However, in 2016, a New Mexico federal court, in Garcia v. Tractor Supply Co., held that the federal Controlled Substances Act preempted the New Mexico anti-discrimination law; that medical marijuana was not an accommodation that must be provided by the employer; and that the employer did not have to follow state laws that protected employees who used marijuana. The New Mexico court decision is consistent with previous court decisions, including the Oregon state court decision cited by the SJC.
We will continue to monitor closely this issue. The national trend towards state legalization of marijuana for medicinal and recreational purposes will be a critical workplace issue that will require ongoing attention. For more guidance on this evolving issue, please contact Peter Bennett () or Rick Finberg