07.20.2017 | Client Alerts

Massachusetts’ Highest Court Creates Reefer Madness for Employers

By Valerie C. Samuels

On July 17, 2017, in the case of Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court (SJC) held that an employer may be required to reasonably accommodate an employee’s use of medicinal marijuana. Is this reefer madness for employers or a new pot of gold for plaintiff’s lawyers and their clients? Only time will tell.

The Medical Marijuana Law

During November 2012, Massachusetts’ voters approved the Massachusetts Medical Marijuana Act (the Act), which became effective on January 1, 2013. The Act eliminated state and civil penalties for medical marijuana usage for individuals suffering from “debilitating medical conditions,” such as Crohn’s disease, multiple sclerosis, Parkinson’s disease, and cancer. The Act was silent on the question of whether employers may issue policies that preclude employees from working while under the influence of marijuana because it is classified as a Schedule 1 controlled substance under the federal Controlled Substances Act. Schedule 1 substances are deemed by the Food and Drug Administration to have no legitimate medical use. Thus, states like Massachusetts that permit medical marijuana use or legalize recreational use do so in defiance of federal law. As a result, many employment lawyers believed that employers need not hire or accommodate workers who use medical marijuana for debilitating health conditions. That abruptly changed for Massachusetts employers with the Barbuto decision.

Facts of the Case

Cristina Barbuto was offered an entry level position with Advanced Sales and Marketing (ASM) during late summer 2014. Ms. Barbuto accepted the offer and forewarned the ASM employee who was to be her supervisor that she would test positive for marijuana on the mandatory drug test. Ms. Barbuto explained that she has Crohn’s disease and her physician had provided her with a certification allowing her to use medicinal marijuana. Although Ms. Barbuto had informed ASM that she did not use marijuana daily and would not consume it before or during work hours, ASM terminated her employment after receiving her positive drug test results. An ASM human resources representative informed Ms. Barbuto that at ASM “we follow federal law, not state law.”

Ms. Barbuto filed a discrimination charge with the Massachusetts Commission Against Discrimination, which she removed to a Massachusetts Superior Court, alleging handicap discrimination, interference with her right to be protected from handicap discrimination, and invasion of privacy. ASM filed a motion to dismiss all counts of the complaint except the invasion of privacy claim. The trial court allowed the motion.

SJC Sends Employer’s Drug Policies Up in Smoke 

The SJC reversed the trial court’s dismissal of Ms. Barbuto’s claims, holding an employer has a duty to engage in an interactive process with an employee who is using lawfully prescribed medicinal marijuana. The employer must determine whether there are equally effective medical alternatives to marijuana whose use would not be in violation of their anti-drug policy.

If no equally effective alternative exists, the employer must prove that the employee’s use of medicinal marijuana would cause an undue hardship to the employer in order to justify its refusal to reasonably accommodate the medical needs of a qualified handicapped employee. The SJC determined that “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 that would be permitted by the employer’s drug policy would be less effective, an exception to the employer’s drug policy to permit its use is a facially reasonable accommodation.” The SJC concluded that the illegality of medicinal marijuana usage under federal law does not make it per se unreasonable as an accommodation. This is because the risk of federal criminal prosecution for possession of medical marijuana is upon the employee, not the employer. This month, Attorney General Sessions has asked Senate leaders to roll back rules that block the Justice Department from bypassing state laws to enforce a federal ban on marijuana.

Practical Implications for Employers

Will the Barbuto decision open the floodgates for employees to disguise their marijuana usage as medicinal or is there light at the end of this hazy tunnel? We can draw some conclusions from the Act and the Barbuto case, as follows:

  • The Act makes clear that it does not require “an accommodation of any on-site medical use of marijuana in any place of employment.”
  • The federal Americans with Disabilities Act (ADA) and Massachusetts law have a narrow exception to the general rule that employers may not discriminate based on disability. This is known as the direct threat defense. An employer may decide not to hire or may terminate a person with a disability if he or she poses a “direct threat to the health and safety” of themselves or others. A direct threat is defined as “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.” This means that employees who are or will be under the influence of marijuana while during working hours and are in safety sensitive positions may be terminated or not hired in the first place.
  • Employers may terminate an employee who is intoxicated due to marijuana usage during working time.

As a result of the Barbuto case, employers may no longer rely on blanket anti-drug policies to deny employment to applicants and employees who lawfully use medicinal marijuana. Employers must engage in an interactive process with such employees and applicants and may not routinely deny an accommodation unless an employer can show that providing an accommodation would create an undue hardship or is a “direct threat” to the health or safety of the employee or others. Employers should keep this in mind and consult with their employment attorneys to revise their anti-drug policies accordingly.

If you have any questions or need additional information concerning this topic, please contact Valerie Samuels or any other attorney in our Employment Group.

This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2017 Posternak Blankstein & Lund LLP. All rights reserved.

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