In Barbuto v. Advantage Sales and Marketing, the Supreme Judicial Court (SJC) ruled that an employee terminated for using medical marijuana may have a viable claim of handicap discrimination under G. L. c. 151B. The Court refused to recognize an implied private right of action under the medical marijuana statute.
Barbuto accepted a position with Advantage Sales and Marketing (ASM), and informed ASM that she would test positive for marijuana on the pre-employment drug test, because she used medical marijuana pursuant to a valid prescription to treat symptoms of Crohn’s disease. Barbuto’s supervisor at ASM confirmed with her that her lawful medical use of marijuana would not be an issue with the company. Barbuto submitted to the drug test and was terminated on her first day of work for testing positive for marijuana. Barbuto filed a charge of discrimination with the MCAD, which she later withdrew to Superior Court. The Court dismissed the employment related claims and the employee appealed.
The SJC rejected the argument that the illegality of marijuana under federal law made medical marijuana an unreasonable accommodation, because in this case the Court found that the only person at risk for federal criminal prosecution is the employee. Even if the accommodation were facially unreasonable, the SJC held that the employer still owed the employee an obligation to “to participate in the interactive process to explore with her whether there was an alternative, equally effective medication which she could use that was not prohibited by the employer’s drug policy” under G. L. c. 151B § 4(16).
The SJC left open that the employer may still show at summary judgment or trial that the plaintiff’s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the defendants’ business. For example, an employer might prove that continued use of marijuana “would impair the employee’s performance or pose an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees.” An undue hardship might also be shown if 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.”
In public employment settings, employers may also have enhanced bases for claiming that medical marijuana use is unreasonable, for example if they are required to abide by federal drug free workplace or drug free school acts, if they have employees subject to federal DOT drug testing, or where there are contractual or other statutory requirements in play. In this case, ASM’s reflexive action (despite plenty of notice and transparency by the employee) was a big factor in the decision against it. In many cases providing an interactive process to explore the facts surrounding the marijuana use will help the employer avoid liability. When faced with issues concerning medical marijuana, you should proceed with caution, and with the advice of experienced labor and employment counsel. ©CL&P
