In a case of first impression, the Supreme Judicial Court held that an employee who is a “qualifying patient” under the Massachusetts’ 2012 medical marijuana law (“An Act for the humanitarian medical use of marijuana”) (the “medical marijuana law”) may pursue a claim for handicap discrimination under the state’s anti-discrimination laws codified in M.G. L. c. 151B. The case is Barbuto v. Advantage Sales and Marketing, LLC.
As a result of this decision, Massachusetts employers should be aware that employees who are “qualifying patients” under the Massachusetts medical marijuana law and seek an accommodation in the workplace (e.g., to be exempt from certain consequences of an employer’s drug testing policy) cannot be summarily terminated. To the contrary, these employees must be treated in the same manner as employees who assert that they are handicapped and seek a reasonable accommodation in order to perform the essential functions of their jobs.
The Facts of Barbuto
Briefly, the case arises out of a Massachusetts woman’s use of medical marijuana for the treatment of Crohn’s disease. Cristina Barbuto disclosed her marijuana use prior to submitting to her prospective employer’s drug test and before commencing her employment in an entry-level marketing position. She told her employer that she had a written certification allowing her to use marijuana for medicinal purposes, that she did not use it on a daily basis, and that she would not consume it before or during work hours. Despite making these disclosures and meeting the medical marijuana law’s requirements, she was discharged after testing positive for the substance.
Application of State Discrimination Laws to Medical Marijuana Patients
Under G. L. c. 151B, § 4 (16), it is an “unlawful practice … [f]or any employer … to dismiss from employment or refuse to hire …, because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.”
Therefore, when a handicapped employee informs her employer that she has a disability, but can perform the essential functions of her position with a reasonable accommodation, the employer must either (1) provide the reasonable accommodation; or (2) engage in an interactive process with the employee to identify the precise limitation resulting from the handicap and potential reasonable accommodations that could overcome those limitations. If, after engaging in the interactive process, the employer cannot provide a reasonable accommodation, and therefore chooses to make an adverse employment decision, the employer bears the burden of proving that the accommodation sought by the employee would cause an undue hardship to the employer’s business.
In this case, Ms. Barbuto alleged in her complaint that she was a “handicapped person” because she suffers from Crohn’s disease and that she is a “qualified handicapped person” because she was capable of performing the essential functions of her job, provided that the employer exempted her from its policy of terminating employees who test positive for marijuana. She alleged that her request to be exempt from the policy was a reasonable accommodation, and that her employer failed to provide it.
The employer defended its decision and argued that because marijuana is illegal to possess under federal law (being classified as a Schedule I controlled substance having “no currently accepted medical use in treatment in the United States” and under which those knowingly or intentionally possess it may incur criminal and civil penalties), an accommodation that would permit the plaintiff to continue to be treated with medical marijuana is per se unreasonable. As such, the employer argued it had no obligation to participate in the interactive process, as mandated by the anti-discrimination laws.
The court disagreed with the employer’s position. It held that the employer did have an obligation to participate in the interactive process with the employee, despite conflicting federal marijuana law. The court observed, “The only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee,” and noted that deeming a request to accommodate the use of medical marijuana as per se unreasonable “would not be respectful of the recognition of Massachusetts voters… that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”
The court also reasoned that where the medical marijuana law expressly does not require “any accommodation of any on-site medical use of marijuana in any place of employment,” this limitation “implicitly recognizes that the off-site medical use of marijuana might be a permissible ‘accommodation.’”
Limitations of the Decision
Importantly, the court only decided that an employee’s use of medical marijuana under these circumstances is not per se unreasonable, and that this employee may proceed with her handicap discrimination claims in the trial court.
The court affirmatively stated that its decision “does not necessarily mean that [Barbuto] will prevail in proving handicap discrimination.” At trial, the employer may offer evidence that the plaintiff’s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the employer’s business. The court commented on three situations in which the accommodation of medical marijuana use could constitute an undue burden on the employer, paraphrased below:
- Safety risks. An employer may be able to show that the use of medical marijuana would impair the employee’s performance or pose safety risk to the public, the employee, or her fellow employees.
- Violation of federal laws. An employer might prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business (e.g., transportation employers that are subject to U.S. Department of Transportation regulations).
- Breach of federal contracts. An employer may show that allowing medical marijuana use could put its federal contracts in jeopardy, because government contractors and the recipients of federal grants 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 any employee from using a controlled substance in the workplace.
Winds of Change
The court frequently references the evolving landscape of marijuana policy in its decision. On two occasions, the court cited the statistic that “nearly ninety per cent of States, as well as Puerto Rico and the District of Columbia, allow the limited possession of marijuana for medical treatment.” The court also noted the “unusual backdrop” of the state of the law – one in which “a qualifying patient in Massachusetts who has been lawfully prescribed marijuana remains potentially subject to Federal criminal prosecution for possessing the marijuana prescribed.”
This decision was long-awaited, and will undoubtedly be cited by other litigants from Massachusetts and beyond as marijuana policies continue to develop. By putting its decision in this larger policy context, the court suggests that the case law and judiciary must adapt alongside the rapidly changing legislative landscape.
In sum, Barbuto is a clear signal that the issue of marijuana policy will be a focus for both the state legislatures and courts for the foreseeable future.
Practical Steps For Employers to Consider
All employers – whether they drug test their employees or not – should review their handbooks and policies with counsel to ensure their policies on drug and alcohol use are up-to-date and in compliance with both state and federal laws. Employers who drug test their employees should pay special attention to their policies in light of the Barbuto decision.
Employers may also want to revisit which employees they are subjecting to drug tests and why. For example, testing employees in safety sensitive positions is understandable and, depending upon the particular position, may be mandated by federal law (e.g., crewmembers upon passenger vessels governed by United States Coast Guard statutes and regulations; truck drivers governed by the DOT). On the other hand, an administrative position, like the one for which Barbuto was hired, may not be the type of position for which a drug test is even appropriate or, if a test is performed, a positive test result may not warrant an automatic exclusion from employment especially where the applicant or employee is disabled; uses medical marijuana for the disability; and otherwise conforms to the employer’s workplace and performance standards while at work.