The Massachusetts Supreme Judicial Court (SJC) recently held in Barbuto v. Advantage Sales & Marketing, LLC that employees have a viable claim for disability discrimination under state law if they suffer an adverse employment action for using medical marijuana.

In 2012, Massachusetts voters approved a ballot initiative titled "An Act for the humanitarian medical use of marijuana." The law provides that individuals who have been diagnosed by a licensed physician with a debilitating medical condition and are prescribed medical marijuana "shall not be penalized under Massachusetts law in any manner."

In Barbuto, the plaintiff accepted an entry-level position with Advantage Sales in August 2014 and was subject to a mandatory drug test. The plaintiff informed a representative from Advantage Sales that she would test positive for marijuana because she had Crohn's disease, an inflammatory bowel condition, and had been prescribed marijuana by her physician as a treatment. The plaintiff also stated that marijuana helped her maintain a healthy weight, that she would not use the drug before work or on company property, and that she did not use it daily.

Advantage Sales initially informed the plaintiff that her medicinal usage of the drug "should not be a problem." However, after her first day of work, a human resources representative terminated the plaintiff's employment, stating the failed drug test as cause, and allegedly stated, "We follow federal law, not state law."

The plaintiff sued Advantage Sales alleging, among other things, that the termination of her employment was motivated by her handicap and that her employer failed to accommodate her. Advantages Sales moved to dismiss these claims, and the trial court granted its motion. The plaintiff then appealed the decision to the SJC.

In holding that the plaintiff had a cause of action for disability discrimination, the SJC held that—assuming the allegations in her complaint were true—the plaintiff demonstrated that her employer unlawfully terminated her employment. The SJC also concluded that Advantage Sales failed to engage in the required "interactive process" to determine whether there was an alternative, equally effective medication that the plaintiff could use. The SJC rejected Advantage Sales' argument—which has been made by many employers—that because marijuana use violated federal law, it was facially unreasonable to allow the plaintiff to utilize medical marijuana as an accommodation.

Rather, the court held that allowing the off-site use of medical marijuana could potentially be a reasonable accommodation for an employee's disability. The court stated, "Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.”

Going a step further, the court noted that, even if the off-site use of medical marijuana was an unreasonable accommodation, an employer still has an obligation to engage in an interactive process to explore alternative medications that would not violate its existing drug policy. The court did recognize that an employer can still prevail where it can establish that it would cause an undue hardship to accommodate the employee's medical use of marijuana—e.g., where a federal contractor is subject to the Drug-Free Workplace Act or where the employer is subject to federal Department of Transportation regulations.

Although the majority of states—as well as Puerto Rico and the District of Columbia—have laws decriminalizing the use of marijuana for medical purposes, the SJC was addressing a novel issue: the prescribed use of medical marijuana and its inevitable interaction with disability discrimination laws. The SJC's decision could influence interpretations of other states' laws and prompt employers to consider how and if their drug policies accommodate individuals who are prescribed medical marijuana.

In light of this decision, employers should consider how the courts in their jurisdiction(s) have construed the interplay of marijuana and disability discrimination laws. If appropriate, it may be necessary to review drug and anti-discrimination policies—and how these policies are implemented—to ensure that employees are not automatically terminated or that candidates automatically are rejected for testing positive for marijuana. Moreover, employers should be cognizant of the obligation to engage in the interactive dialogue under the Americans with Disabilities Act and/or state and local disability discrimination laws, when warranted. Under this decision, the dialogue should include exploration of whether allowing an employee or applicant to take medical marijuana would create an undue hardship and/or whether there are alternative reasonable accommodations that the employer could offer.

Ballard Spahr's Labor and Employment Group and Accessibility Team are fully versed in all areas of compliance under the Americans with Disabilities Act and other laws designed to protect the rights of people with disabilities. We help clients across the country to assess their rights and responsibilities under the law, design programs to keep them in compliance, and defend against claims of discrimination. Ballard Spahr attorneys have also advised clients in various aspects of the medicinal cannabis industry.


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