by Erica E. Flores
A new ruling from the Massachusetts Supreme Judicial Court should be a warning to employers in the state that refuse to tolerate medical marijuana use by employees with a disability.
On July 17, the state high court ruled in Barbuto v. Advantage Sales & Marketing, LLC, that an employee who was fired for failing a drug test based on her use of medical marijuana could sue her former employer for handicap discrimination under Massachusetts state law. The court reasoned that making an exception to an employer’s drug policy is a reasonable accommodation for an employee with a disability if the medical marijuana has been prescribed by a physician and is more effective than any alternative medication.
The court said the state’s medical marijuana law compels this result because the statute guarantees that users won’t be denied any “right or privilege” because of their use of medical marijuana, and the right to reasonable accommodations provided by the law is within the scope of that guarantee. The court also noted that by expressly allowing employers to refuse to allow onsite use as an accommodation, the medical marijuana law implies recognition that offsite use “might be a permissible accommodation.”
Also, the court ruled that the mere fact that marijuana remains illegal at the federal level doesn’t automatically make offsite use by disabled employees unreasonable as an accommodation. The court observed that the employer doesn’t commit any crime by tolerating such use, and if there is any risk to the employer’s business associated with the accommodation, it can avoid liability by demonstrating that tolerating marijuana use would create an undue hardship—e.g., if the drug use creates an unacceptable safety risk or violates a contract or statutory obligation, such as those imposed on employers subject to regulation by the U.S. Department of Transportation.
Employer takeaway
The state high court’s decision means that current and prospective employees now have a broad avenue of relief against employers that take adverse action against them for using medical marijuana. Unless an employer can demonstrate that accommodating the use of medical marijuana would be an undue hardship, applicants and employees will have a strong claim of disability discrimination under Chapter 151B of the Massachusetts General Laws, particularly if the employer failed to engage in the interactive process to try to identify an equally effective lawful alternative.
Therefore, employers that are considering action against an employee who tests positive for marijuana should proceed with extreme caution if the employee has a valid prescription to use the drug.
The new ruling partially reverses a state court ruling a year ago that for the first time considered whether employers must accommodate the offsite use of medical marijuana by an employee with a disability under the law. In concluding that an employer wasn’t obligated to tolerate medical marijuana use, the lower court reasoned that marijuana remains illegal under federal law and a number of courts in other states have ruled that employers aren’t required to accommodate employees who use medical marijuana.
Erica E. Flores is an attorney with Skoler, Abbott & Presser, P.C., in Springfield and an editor of Massachusetts Employment Law Letter. You can reach her at eflores@skoler-abbott.com.