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July 2017



Lauren S. Fackler

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Massachusetts SJC Torches Medical Marijuana Defense for Employers

Earlier this week, the Massachusetts Supreme Judicial Court issued a decision in Barbuto v. Advantage Sales and Marketing, LLC. Although possession of marijuana is a crime under Federal law, Massachusetts allows limited possession of marijuana for medical treatment. As explained below, employers in Massachusetts can no longer argue that use of medical marijuana is a facially unreasonable accommodation just because it is a Federal crime. Now an employee’s use of medical marijuana may be considered a reasonable accommodation.

Advantage Sales and Marketing, LLC (“ASM”) offered Cristina Barbuto an entry-level position promoting products in supermarkets. After Ms. Barbuto accepted the position, ASM notified her that she was required to take a mandatory drug test. Ms. Barbuto informed ASM that her she would test positive for marijuana because she used it to treat her Crohn’s disease. ASM assured Ms. Barbuto that this would not be a problem. However, ASM ultimately terminated Ms. Barbuto’s employment because her drug test was positive for marijuana.

Ms. Barbuto alleges that she was discriminated against because of her handicap. She claims that she was capable of performing the essential functions of her job if she was allowed to use medical marijuana and that use of medical marijuana should be considered a reasonable accommodation. ASM argued that because it is illegal to possess marijuana under Federal law, an accommodation to permit Ms. Barbuto to continue using it is unreasonable.

The SJC stated that even if an employee’s proposed accommodation is facially unreasonable, the employer must still participate in the interactive process to explore whether a reasonable accommodation exists before it terminates the employee. ASM’s failure to participate in the interactive process with Ms. Barbuto to explore whether there was an alternative, equally effective medication that she could use that was not prohibited by its drug policy is sufficient to support her claim of handicap discrimination if she can prove that a reasonable accommodation existed. However, if there is no equally effective alternative medication that Ms. Barbuto could use, in order to justify ASM’s refusal to make an exception to its drug policy, ASM must prove that Ms. Barbuto’s use of medical marijuana would cause an undue hardship on its business. If ASM can prove that Ms. Barbuto’s use of medical marijuana would pose an undue hardship on its business, then it is not a reasonable accommodation and Ms. Barbuto will not prevail in proving handicap discrimination.

The SJC gave examples of undue hardship on a business due to an employee’s use of medical marijuana: (1) impairment of the employee’s performance of his or her work; (2) imposition of an unacceptable significant safety risk to the employee, his or her coworkers, or the public; and (3) violation of an employer’s contractual or statutory obligation.

The SJC specifically noted that an employee’s use of medical marijuana is not a reasonable accommodation for: (1) transportation employers subject to US Department of Transportation regulations that prohibit safety-sensitive employees subject to drug testing under the department's drug testing regulations from using marijuana; and (2) Federal government contractors and recipients of Federal grants that are obligated to comply with the Drug Free Workplace Act, which requires them to make a good faith effort to maintain a drug-free workplace and prohibits employees from using a controlled substance in the workplace. It would not seem prudent to allow an employee using medical marijuana to pilot an airplane, drive a school bus, or even operate a forklift.

The SJC concluded that Ms. Barbuto’s use of medical marijuana was a facially reasonable accommodation and that ASM failed to participate in an interactive process with her to determine whether an equally effective alternative medication was available before it terminated her employment. Therefore, the SJC reversed the dismissal of Ms. Barbuto’s claim alleging handicap discrimination and remanded the case for further proceedings. The SJC's decision does not necessarily mean that Ms. Barbuto will win her claim of handicap discrimination. To defeat Ms. Barbuto, ASM must now establish that Ms. Barbuto’s use of medical marijuana would impose an undue hardship on its business through discovery. This issue can be addressed at the summary judgment stage or at trial.

In light of the Barbuto decision, employers in Massachusetts should cautiously consider requests for accommodations for medical marijuana, revise their employee handbooks, update their human resources training, review their federal contracts and grants, review the US Department of Transportation regulations, and review the Drug Free Workplace Act. Please do not hesitate to contact us if you have any questions.

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