On July 17, 2017, the Massachusetts Supreme Judicial Court issued a unanimous ruling in Barbuto v. Advantage Sales and Marketing, LLC, allowing medical marijuana users to assert claims for handicap discrimination under the Massachusetts Fair Employment Practices Act. However, in the same ruling, the court also held that the Massachusetts Act for the Humanitarian Medical Use of Marijuana (the Massachusetts Medical Marijuana Act) does not provide an implied, private right of action by employees against employers. The court also declined to recognize an action for violation of public policy within the context of adverse employment actions against medical marijuana users.
The decision, which is the outcome of the first medical marijuana case considered by the Massachusetts Supreme Judicial Court, has a potentially far-reaching effect—even outside of Massachusetts. Notably, the supreme judicial court became the first appellate court in any jurisdiction to hold that medical marijuana users may assert state law handicap or disability discrimination claims—regardless of whether the state’s medical marijuana statute provides explicit employment protections. (Massachusetts’s medical marijuana statute does not provide such employment protections.) Fortunately, the decision also provides guidance for employers to follow to avoid potential pitfalls when dealing with medical marijuana users.
The Massachusetts Medical Marijuana Act went into effect on January 1, 2013. Similar to marijuana statutes in many other states, the Massachusetts statute’s plain language seems to indicate that the purpose of the act is to provide medical marijuana users with protection from criminal prosecution or civil penalties (i.e., monetary fines) for possessing medical marijuana. However, unlike the medical marijuana laws in 11 states (Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Nevada, Pennsylvania, and Rhode Island), the act does not contain an anti-discrimination provision or any other language explicitly providing job protections for medical marijuana users.
The plaintiff in this matter, Cristina Barbuto, suffers from Crohn’s disease and treats her condition with medical marijuana. In late summer of 2014, Barbuto accepted a job offer from Advantage Sales and Marketing, LLC (ASM), which was contingent upon the satisfactory completion of a pre-employment drug test. Before taking the drug test and beginning work at ASM, Barbuto voluntarily disclosed her Crohn’s disease to ASM and informed ASM that she used medical marijuana to treat her condition. After submitting to the drug test, Barbuto began her employment with ASM. Approximately one day later, she was contacted by an ASM representative who informed her that she had tested positive for marijuana. Because of her positive drug test, ASM terminated Barbuto’s employment. Barbuto took the position that ASM should not apply its drug test policy to her by either: (1) not making her take the drug test, or (2) allowing her to fail the drug test without any adverse employment consequences.
The Supreme Judicial Court’s Opinion
Although ASM did not argue that the supreme judicial court should uphold the dismissal of Barbuto’s handicap discrimination claim because marijuana remains illegal under federal law, the supreme judicial court spent a majority of its opinion rebutting this position. The court also held that if a medical marijuana user is an individual with a handicap or disability—which would be the case for most if not all medical marijuana users—then that individual may assert a claim for handicap discrimination under Massachusetts state law. Thus, the court held that an employer must engage in an “interactive process” with a medical marijuana user to determine if the medical marijuana user can continue to perform his or her job duties with a reasonable accommodation to the handicap. The court also insinuated that an employer should determine whether a medical marijuana user could treat his or her medical condition with an alternative medicine instead of medical marijuana. In reaching this conclusion, the court ignored case law from California, Montana and New Mexico, in which courts had declined to hold that employers must accommodate employees’ use of medical marijuana.
While the court did not find language within the Massachusetts Medical Marijuana Act to support an implied right of action for medical marijuana users against employers, it did look to certain language of the act to support its finding that employers must engage in an interactive process with medical marijuana users to determine if a reasonable accommodation exists. Specifically, the court looked to the act’s language stating that medical marijuana users shall not be “denied any right or privilege” due to medical marijuana use, and to language prohibiting “on-site” use of medical marijuana in the workplace (finding an implied right to “off-site” use) to support its position.
Fortunately for employers, the court declined to recognize a private right of action under the Massachusetts Medical Marijuana Act itself for medical marijuana users who are subjected to adverse employment actions. However, this may be cold comfort to employers since the court noted that such a cause of action was unnecessary since those medical marijuana users could instead assert a claim for handicap discrimination under Massachusetts state law. Similarly, the court declined to recognize a claim for wrongful termination in violation of public policy for medical marijuana users but, again, based this determination on the existence of an alternative handicap discrimination claim.
Key Takeaways for Employers
1. While marijuana remains illegal under federal law, this may not matter in states where medical marijuana is legal.
In reading the Massachusetts Supreme Judicial Court’s opinion, it is evident that the court was waiting on an opportunity to emphatically rebut any argument raised by an employer that an adverse employment action against a medical marijuana user is justifiable solely because marijuana is categorized as an illegal controlled substance under federal law. Although this argument was never raised by ASM, the court addressed (and rebutted) it anyway. Other state courts may take a similar stance as this issue moves forward.
2. State law handicap or disability discrimination claims are now a valid concern for employers dealing with medical marijuana users.
With Massachusetts becoming the first state to definitively hold that a medical marijuana user may assert a state law claim for handicap or disability discrimination, employers are left to wonder whether this will open the floodgates to similar state law handicap or disability discrimination claims in other states—especially since the Barbuto case provides a blueprint for such claims.
3. Employers should engage in the “interactive process” with medical marijuana users to determine if they can perform essential job functions with a reasonable accommodation.
The Massachusetts Supreme Judicial Court clearly mandated that Massachusetts employers that are faced with a job applicant or employee who uses medical marijuana must engage in an interactive process with that individual to determine whether a reasonable accommodation exists to allow the individual to work. The court also strongly insinuated that the interactive process should primarily consist of an employer determining whether a medical marijuana user is able to take any alternative medications to treat his or her medical issue. Beyond this threshold question, however, employers are left without clear direction on what to do next. If the individual could treat his or her condition by other means, then that would qualify as a reasonable accommodation and one that an employer could live with. However, if marijuana is the only suitable treatment, an employer is faced with the difficult decision of what to do next.
The supreme judicial court did acknowledge that an employer may be able to show that it would suffer an “undue hardship” in accommodating marijuana use for a medical marijuana user if the employer is subject to any contractual or statutory obligations, such as Department of Transportation regulations or the Drug Free Workplace Act that governs federal contractors.
This difficult question extends not only to employers in Massachusetts, but also to employers in other medical marijuana states that have state law disability discrimination laws, such as those in California, Colorado, Michigan, Montana, New Mexico, and Washington. Although courts in these jurisdictions have found in favor of employers in medical marijuana matters, those cases weren’t decided solely on a disability discrimination theory. Thus, based on the Massachusetts Supreme Judicial Court’s decision in Barbuto, there is a possibility that other courts will follow suit, regardless of past precedent.
4. Will the EEOC weigh in?
Although the Barbuto case has no effect on federal case law or interpretation of the Americans with Disabilities Act, with the ever-changing landscape of medical marijuana in the United States, it is feasible that the U.S. Equal Employment Opportunity Commission (EEOC) may eventually weigh in on the issue of medical marijuana in the workplace. If this happens, it is possible that the EEOC could take a similar position as the Massachusetts court.