In a much-anticipated decision, the Massachusetts Supreme Judicial Court ruled on July 17, 2017, that an employee's use of medical marijuana to treat a qualified disability may be a reasonable accommodation under the Massachusetts anti-discrimination law, General Laws chapter 151B. In Barbuto v. Advantage Sales and Marketing, LLC, the court held that the employee stated a claim against her former employer for disability discrimination after being fired for testing positive for marijuana that she had been legally prescribed under state law to treat her disability. The court stressed that, like with other qualified disabilities, employers must engage in an "interactive process" with the employee to determine the best course of action with respect to accommodations.
Although still illegal under federal law, medical marijuana became legal in Massachusetts in 2012 with the passage of a ballot initiative allowing for therapeutic use of the drug by registered patients with qualified medical conditions upon written certification by a physician. The employer in this case asked the plaintiff-employee upon hiring to take a drug test. The employee informed the employer that she was prescribed medical marijuana to treat Crohn's disease, a condition expressly included in the medical marijuana act, adding that she did not use marijuana daily and would not consume it at or before work. Despite her physician certification for use of marijuana, the employee was fired for failing the drug test after her first day of work.
The employee claimed that she was qualified as disabled because she was capable of performing the essential functions of her job with a reasonable accommodation: waiver of the employer's drug policy.
The court explicitly rejected the employer's argument that accommodation of marijuana use is per se unreasonable because marijuana use is a federal crime. Instead, the court outlined the employer's duty to engage in an "interactive process" with the employee to determine whether equally effective medical alternatives to marijuana are available, the use of which would not be in violation of company policy. Where no alternatives exist, the employer must show that the employee's use of marijuana poses an "undue hardship" to the employer's business in order to justify refusal to accommodate. The court held that, where the employee's physician has determined that medical marijuana is most effective and any alternative medication would be less effective, an exception to the employer's drug policy to permit its use is a facially reasonable accommodation.
In affirming dismissal of two counts of the complaint, the court held that no private right of action exists under the Massachusetts medical marijuana act that would permit a terminated employee to sue her employer. Likewise, a cause of action does not exist for wrongful termination in violation of public policy under these circumstances. The appropriate remedy, the court held, is a suit for disability discrimination under M.G.L. c. 151B.
The court acknowledged that the defense of undue hardship may exist, for example, in safety-sensitive jobs where employees may pose a risk to themselves, the public or other employees. Undue hardship may also exist where an employer has a contractual or statutory obligation to adhere to heightened or federal drug testing standards. In these cases, nonetheless, the interactive process must still take place, and the employer may raise an undue hardship defense only after considering fully the employee's request for accommodation.
Massachusetts employers should immediately revisit company policies regarding drug use. The court rejected the employer's argument that the employee was terminated because of a company policy violation, not because of her disability, stating that the employee's termination for violating that policy denies the qualified disabled employee the opportunity of a reasonable accommodation and constitutes discrimination. Accordingly, policies that outright prohibit all marijuana use, without an exception for qualified disabled persons, may prove problematic.
Policies prohibiting marijuana use at work may still be enforced. Massachusetts employers are not required to permit on-site use of medical marijuana, and the Barbuto decision does not change that. Reasonable accommodation of medical marijuana use can be properly limited to off-site, off-hours usage. Employers should work with qualified employees to set expectations and track accountability.
The interactive process is nothing new. Massachusetts employers are expected to work individually with qualified employees with disabilities to identify reasonable accommodations that may work with the employee's job duties. Employers should review medical documentation submitted by the employee and carefully consider the physician's recommendations. Barbuto confirms that this same process applies to qualified employees who use medical marijuana.