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July 19, 2017

Massachusetts Supreme Judicial Court Rules Medical Marijuana User Can Sue Employer for Disability Discrimination

Massachusetts' highest court ruled on July 17, 2017 that employees can sue for disability discrimination if they are fired or otherwise punished for using medical marijuana, reviving the case of an advertising employee, Cristina Barbuto, who was fired after failing a mandatory drug test because of her use of medically prescribed marijuana to treat her Crohn's disease.

By way of background, Massachusetts voters approved a ballot initiative in 2012 allowing medical marijuana use. In 2014, Barbuto accepted an entry-level position with Advantage Sales. When the Company subsequently told Barbuto she had to take a mandatory drug test, Barbuto told her employer that she would test positive for marijuana since she has Crohn's disease and had been medically prescribed marijuana to treat it. Barbuto also explained that her physician's written certification made her a qualifying medical marijuana patient under Massachusetts law, and added that she did not use marijuana daily and would not consume it before work or at work.

On September 5, 2014, Barbuto submitted a urine sample for the mandatory drug test. On September 11, 2014, Barbuto completed her first day of work, did not use marijuana at the workplace and did not report to work in an intoxicated state. She was terminated that same evening for testing positive for marijuana.

In its ruling, the Massachusetts Supreme Judicial Court ("SJC") said that patients, like Barbuto, who legally use marijuana for medical purposes can haul their employers into court if they are fired from their jobs because they tested positive. The panel also said that allowing for the use of medical marijuana could potentially be a reasonable accommodation for an employee's disability if that employee has been legally prescribed marijuana. "Under Massachusetts law "¦ the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication." "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."

In overturning the dismissal of her suit, the SJC rejected the employer's argument that Barbuto did not adequately allege that she is a "qualified handicapped person" because the only accommodation she sought – her continued use of medical marijuana – is a federal crime and therefore is an unreasonable request on its face. "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 high court also noted that even if an accommodation for the use of medical marijuana were unreasonable, the employer still had an obligation to engage Barbuto in an interactive process to figure out if another medicine that was allowed under the company's drug policy would work just as well to treat her medical issues.

The fact that Barbuto can pursue claims of handicap discrimination does not, however, necessarily mean she will prevail on those claims, the court said, noting that the employer will have its opportunity in the litigation to show that Barbuto's use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the company's business. The Massachusetts SJC added that there is no implied statutory private cause of action under the state's medical marijuana act and that Barbuto failed to state a claim for wrongful termination in violation of public policy, affirming the lower court's dismissal of those claims.

The Barbuto decision is a good reminder that the issue of medical marijuana-use by employees or prospective employees often has to be handled in the context of relevant state and federal disability laws, including the Americans with Disabilities Act and/or the Family Medical Leave Act.

Indeed, employers must be mindful of legal obligations to engage in an interactive dialogue with applicants and/or employees who are certified patients under the Massachusetts medical marijuana-use law and, where possible, reasonably accommodate applicants and employees with respect to underlying medical conditions. In other words, when considering taking adverse employment actions against an employee or applicant, employers particularly in Massachusetts should not do so based solely on an employee's or applicant's participation in a medical marijuana program, and employers should be careful to ensure that adverse employment decisions are not based on an individual's underlying medical condition.


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