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Massachusetts High Court: Permitting Medical Marijuana May Be A Reasonable Accommodation

July 19, 2017

By Michael G. McClory

The Bullard Edge must eat its words (or at least some of them).  In a case involving medical marijuana and the workplace, the Massachusetts Supreme Judicial Court held this week that an employer is required to engage in the interactive process regarding potential accommodations and may be required to reasonably accommodate the medical use of marijuana outside of the workplace.  The holding applies to Massachusetts employers, but has implications in all states with medical marijuana laws.
Underlying Facts:
The case, Barbuto v Advantage Sales and Marketing, was filed in 2015 by Cristina Barbuto following her termination from employment with Advantage.  Ms. Barbuto alleged that Advantage offered her an entry-level position.  After she accepted the offer, Ms. Barbuto received a message informing her that she would need to submit to a pre-employment drug test.  Ms. Barbuto, who has Crohn’s disease, told her future supervisor that she uses medical marijuana as part of her treatment, that her physician authorized this consistent with the state’s Humanitarian Medical Use of Marijuana law, and that she would not use marijuana before or during work.  The supervisor checked with Advantage and then told Ms. Barbuto that her marijuana use would not be a problem.
A week before starting work, and with the assurance that her medical marijuana use would not be an issue, Ms. Barbuto submitted to the pre-employment drug test.  The next week, after she completed her first day on the job, Advantage informed Ms. Barbuto that it was terminating her employment because her test had been positive for marijuana.  The termination prompted Ms. Barbuto to file a lawsuit against Advantage alleging, among other things, disability discrimination in violation of Massachusetts law.  After the trial court dismissed the discrimination claim, she appealed directly to the Massachusetts Supreme Judicial Court.
The high court began its review of Ms. Barbuto’s appeal by describing the state “handicap discrimination” law.  Despite the anachronistic name, the state disability discrimination law is very similar to the ADA (at least for purposes of this discussion).  In particular, the law makes it unlawful for an employer to refuse to hire or terminate the employment of a “handicapped person” because of disability (a physical or mental impairment that substantially limits him/her in one or more major life activities, as well as a record of such an impairment or being regarded as having such an impairment).  The law also requires an employer to provide reasonable accommodation, unless providing accommodation would impose an undue hardship.
The high court had no problem concluding that Crohn’s disease is a disability that brought Ms. Barbuto within the protection of the state disability discrimination law.  The more difficult issues, though, were whether excusing her from Advantage’s drug policy would be a reasonable accommodation or whether excusing her would impose an undue hardship on Advantage.
Advantage argued that the accommodation sought ~ permission to continue using medical marijuana without being punished under the company’s drug policy ~ was not reasonable.  It took the position that the use of marijuana, even medical marijuana, “is a Federal crime, and therefore is facially unreasonable.”  The Massachusetts Supreme Judicial Court rejected that argument and held that Ms. Barbuto could proceed to trial on her claim.  The holding made at least four points of note.
First, where an employee is being treated with medication that can alleviate or manage an impairment or its symptoms, “one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it.”  If the employer’s drug policy barred the use of that medication, the employer would have an obligation to engage in the interactive process with the employee regarding potential reasonable accommodations.
Second, in the event that there is no equally effective alternative, the employer bears the burden of proving that the employee's use of the medication would cause an undue hardship.  Because it is the employer’s burden to prove undue hardship, a “complaint will state a claim for relief that will survive a motion to dismiss where it adequately alleges that she is a ‘qualified handicapped person’ because she could have competently performed her job with the medication, and that allowing her to use the medication was at least facially a reasonable accommodation.”
Third, the high court is entirely unmoved by federal law making it illegal to possess marijuana.  “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 only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee.”
Fourth, it is important to note that the employer may still prevail on summary judgment or at trial by proving undue hardship.  For example, an employer might prove that the use or continued use of medical marijuana:
  • “would impair the employee’s performance of her work”;
  • would “pose an ‘unacceptably significant’ safety risk” to the public, the employee, or co-workers; or
  • would “violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business.”
The bottom line is that employers in Massachusetts must engage in the interactive process when an employee requests that s/he be permitted to use medical marijuana without being disciplined for violation of the employer’s drug policy.  The outcome of that interactive process may be that permission to use medical marijuana is reasonable.  The outcome also may be that granting permission would be an undue hardship for the employer.
Practical Observations:
While this Barbuto v Advantage decision applies only in Massachusetts, employers in most other states should be paying attention.  The Massachusetts Supreme Judicial Court carved a cause of action out of the state’s disability discrimination law.  The courts in any other states that have both a disability discrimination law and a medical marijuana law could reach the same conclusion.  Oregon, Washington and California have already held that no such claim exists.  However, as societal attitudes towards marijuana change, the courts in those states could revisit the issue.
Employers do not yet have to change their drug policies to permit medical marijuana.  However, there are a few things employers may want to consider doing.  First, an employer may want to consider whether permitting medical marijuana would be an undue hardship and should fully understand the reasons why it would be an undue hardship.  Second, an employer may want to examine its drug testing process where an applicant or employee tests positive for marijuana. 
These are challenging times.  Employers need to pay attention to changes in the law.  The Bullard Edge will continue to help with this process.
Best regards,
The Bullard Edge

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