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Medical Marijuana Users Can Sue For Disability Discrimination in Massachusetts

Published by and on August 23, 2017

Massachusetts Supreme Judicial Court announces that properly prescribed medical marijuana users can sue employers if the employers fire or otherwise punish these employees because of their legal substance use.

Massachusetts Supreme Judicial Court announces that properly prescribed medical marijuana users can sue employers if the employers fire or otherwise punish these employees because of their legal substance use.

In 2012, Massachusetts legalized the use of medical marijuana under An Act for the Humanitarian Medical Use of Marijuana (the “Act”). Unlike the majority of states’ legislation that similarly legalizes the limited use of marijuana for medicinal purposes, Massachusetts’ legislators built in certain protections for users under the law. At issue in Barbuto v. Advantage Sales and Marketing, LLC, was whether a party may successfully bring a discrimination claim against an employer who terminated her for her lawful use of marijuana based on the protections provided under the Act. SJC-12226 (Mass., July 17, 2017). The Court ultimately held that while a party has no private right of action under the Act, he or she may assert a discrimination claim in violation of the state’s handicap discrimination law. G. L. c. 151B, § 4. The Court stated that the Act provides a handicapped employee the statutory right or privilege to a reasonable accommodation under Massachusetts’ handicap discrimination law.

In 2014, Cristina Barbuto (“Plaintiff”) was offered and accepted an entry-level position with Advantage Sales Marketing (“ASM”). As a condition of employment, Plaintiff was required to take a mandatory drug test. Plaintiff took the drug test, but explained to her ASM supervisor that she would test positive for marijuana. Plaintiff explained that she suffers from Crohn’s disease and that she was a qualifying medical marijuana patient under Massachusetts’ law. Plaintiff further told her supervisor that she did not use marijuana on a daily basis nor would she us it before or during work. After confirming with others at ASM, the supervisor told Plaintiff that her marijuana use should not be a problem. After her drug test returned positive for marijuana, however, Plaintiff was terminated, having only completed one day of work. An ASM Human Resources Representative told Plaintiff that she was being terminated because she tested positive. The HR Representative told Plaintiff that she did not care whether Plaintiff lawfully used marijuana under state law, as it was the federal law that ASM followed.

After her termination, Plaintiff filed a complaint with the Massachusetts Commission Against Discrimination and later with the Suffolk Superior Court. She filed a total of six (6) discrimination charges, all of which were dismissed except an invasion of privacy claim. Upon appeal, the Supreme Judicial Court focused its discussion on whether the Act protects qualifying marijuana users under the state’s handicap discrimination law. In pertinent part, the Act states: “[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” G. L. c. 369, § 4.

In this case, Plaintiff asserted that she was a “qualified handicapped person” under state law, and she was capable of performing the essential functions of her job with a reasonable accommodation —- a waiver of ASM’s policy barring marijuana use. The Court stated that “where a plaintiff is handicapped and where she suffered an adverse employment action even though she was capable of performing the essential functions of position with some form of accommodation, the plaintiff adequately alleges a claim of handicap discrimination if the accommodation she alleges is necessary is facially reasonable.” Barbuto, at 10. Under Massachusetts’ handicap discrimination law, “reasonable accommodation” is not defined, however, state guidelines define it as “any adjustment or modification to a job, employment practice, or work environment that makes it possible for a handicapped individual to perform the essential functions of the position involved and to enjoy equal terms, conditions and benefits of employment.” MCAD Guidelines, 151B § II.C. The Court further acknowledged that when it comes to reasonable accommodation claims, there are no “hard and fast” rules as to what makes a reasonable accommodation claim facially reasonable; rather the plaintiff must show that the proposed accommodation is feasible for the employer under the circumstances. Barbuto, at 10—11.

Ultimately, the Court held that Plaintiff could go forward with her claim of disability discrimination, and it reversed the lower court’s dismissal of Plaintiff’s discrimination claims. In addition to its holding allowing Plaintiff to go forward with her discrimination claims, the Court discussed the adequacy of Plaintiff’s pleadings and ASM’s failure to show any undue burden on its business at this stage in the case. The Court stated that Plaintiff adequately showed that she was a qualified handicapped individual under the law and that her requested accommodation —- the continued off-site use of marijuana to ease the symptoms of her Crohn’s disease —- could have allowed her to perform the essential functions of her job. ASM’s failure to participate in any interactive process with Plaintiff and its failure to grant the requested accommodation before terminating Plaintiff’s employment violated Massachusetts’ handicap discrimination law.

Importantly, the Court did note that employers are not required to provide any accommodation for on-site medical use of marijuana, nor are employers required to make accommodations for safety-sensitive jobs, such as transportation positions or jobs subject to federal drug-free workplace laws. See id., at 15, 19—20.

Welter Insight

As pointed out by the Court in Barbuto, nearly ninety (90) percent of the States, including Puerto Rico and the District of Columbia, now legalize the limited possession of medical marijuana, yet marijuana is still an illegal Schedule I controlled substance under federal law. After the Barbuto opinion, employers should be reasonably concerned about whether they too will need to make such reasonable accommodations under applicable disability discrimination laws.

First, marijuana is still a prohibited substance under federal law; thus, no employer owes an employee a reasonable accommodation of medical marijuana use under the Americans with Disabilities Act. Second, the Barbuto Court held that the federal laws prohibiting marijuana do not exempt employers from their obligations under state law to reasonably accommodate medical marijuana users because only the marijuana-using employee risks prosecution for marijuana use and possession —- “an employer would not be in joint possession by simply permitting an employee to continue his or her off-site use.” Third, the vast majority of jurisdictions legalizing some form of medical marijuana possession and use do not have the same built in protections and applications as the Massachusetts Act discussed above. Thus, the Barbuto opinion has no precedential effect as to how most employers decide to apply their drug policies in the workplace.

Of note, however, there are three states with similar statutory language where employers need to pay attention to this case: New York, Minnesota, and Maine. In these states, including Massachusetts, employers should consider granting such an accommodation to requesting employees when the off-site use of marijuana is not an undue hardship on the employer’s business. At the very least, affected employers must make sure they are accurately assessing whether a requesting employee has a handicap (substantially limited in a major life activity), whether it is a qualified handicap under applicable state law that warrants an accommodation and whether off-site use of marijuana will prevent the employee from performing the essential elements of his or her job. Finally, employers must correctly go through the interactive process with requesting employees before granting or denying any accommodation. Affected employers should consider updating their workplace accommodation and drug policies to spell out any limitations regarding such an accommodation or exception to workplace policies.

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