On July 17, 2017, in the case of Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court ruled that an employee’s claim for discrimination could proceed when the employee was fired for using marijuana that was prescribed to treat her medical condition.
In Massachusetts, state law permits the use and possession of marijuana for medical treatment. In this case, the employer (Advantage Sales and Marketing, LLC) had a policy that prohibited any use of marijuana by its employees. The company’s policy was applied against its employee, Cristina Barbuto, who suffers from Crohn’s disease and who was prescribed marijuana by a licensed physician. According to the court, the termination of Ms. Barbuto in these circumstances could amount to discrimination based on the denial of reasonable accommodation to a handicapped employee
The court ruled that a company is not entitled to merely refer to its policy in determining how or whether to accommodate a handicapped employee, but instead must evaluate accommodations on a case-by-case basis:
[W]here an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it. If the employer, however, had a drug policy prohibiting the use of such medication, even where lawfully prescribed by a physician, the employer would have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy.
Specifically with respect to medical marijuana, the court explained that an employer can be required to make exceptions to its drug policy:
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. A qualified handicapped employee has a right under G. L. c. 151B, § 4(16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.
The court stated that an employer can be required to accommodate an employee’s marijuana use, despite the fact that possession of medical marijuana is still a violation of federal law.
Nevertheless, companies can still bar employees from using marijuana at work because, as the court also explained, Massachusetts law clearly “does not require ‘any accommodation of any on-site medical use of marijuana in any place of employment.’”
The court left open the possibility that the employer in this case may still prevail at a later stage of the proceedings if it can show that the employee’s use of medical marijuana would impose an undue hardship on the company’s business. For example, an employer in this circumstance might be able to “prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees.” In addition, a company could demonstrate that permitting its employee to use medical marijuana constitutes an undue hardship if it proves that “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.” The court cited transportation companies as an example of companies that are regulated by the U.S. Department of Transportation, which requires that certain employees must refrain from using marijuana.
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