Massachusetts High Court Rules Firing Employee for Medical Marijuana Use is Discriminatory

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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SJC Finds LLC Managers Individually Liable Under Massachusetts Wage Act

On June 13, 2013, the Massachusetts SJC issued its decision in Cook v. Patient EDU, LLC (SJC–11272), holding that a manager of a limited liability company (“LLC”) may be held individually liable under the Massachusetts Wage Act (G.L. c. 149, §§ 148, 150) the same way that the president, treasurer, or other officers with management responsibilities of a corporation may be held individually liable.

In Cook, the plaintiff sued his former employer – an LLC – and its two managers for unpaid wages under the Wage Act. The Act requires “[e]very person having employees in his service” to pay those employees their wages on either a weekly or bi-weekly basis, or on a less frequent basis in certain circumstances. Violation of the Act results in mandatory treble damages and the award of reasonable attorneys’ fees and costs to the successful plaintiff. The Act provides that the president and treasurer of a corporation, as well as “officers or agents having the management ” of the corporation, “shall be deemed to be the employers of the employees of the corporation within the meaning of this section.” G.L. c. 149, § 148. Similarly, the Act imposes individual liability on “‘[e]very public officer whose duty it is to pay money, approve, audit or verify pay rolls, or perform any other official act relative to payment of any public employees’ who fails to do so.” This means that individuals in those roles may be held personally liable for violations of the Act, including for treble damages, attorneys’ fees, and costs.

In moving to dismiss the plaintiff’s complaint against them, the two managers argued that because the Act does not specifically mention managers of LLCs, they could not be held individually liable for failing to pay the plaintiff his wages. The Court rejected the managers’ argument. It refused to read the language of the Act as “an effort to single out for individual liability only the officers or managers of the specific types of entities mentioned in the statute.” Instead, the Court wrote, “We discern from the inclusion [in the Act] of the provisions regarding corporate and public officer liability a clear legislative intent to ensure that individuals with the authority to shape the employment and financial policies of an entity to be liable for the obligations of that entity to its employees.” The Court concluded that the legislative purpose of the Act would not be served by holding officers and agents of a corporation liable for failure to pay wages but not managers of an LLC, who likewise control the policies and practices related to the timely payment of wages to employees. “To interpret G.L. c. 149, § 148, so as to distinguish between such actors would produce a result at odds with the intent of the statute.”

While not necessarily a shocking result, Cook clarifies an issue that has been the subject of opposing decisions in the superior court. With Cook, there is no longer any doubt that the Massachusetts Wage Act imposes individual liability on managers of an LLC and other limited liability entities. Individuals in these types of roles must recognize their exposure in the event the LLC itself is unable to pay a damages award. This is yet another reason why employers – and their most senior leaders – must insure that they are complying with the strict requirements of the Wage Act.

SJC Clarifies Leave Limit Under Mass. Maternity Leave Act

In an August 9, 2010 decision, the Massachusetts Supreme Judicial Court clarified that job-restoration rights under the Massachusetts Maternity Leave Act (“MMLA”) do not extend beyond eight weeks. In Global NAPS, Inc. v. Awiszus (No. SJC-10586), the Court, by a 4–3 margin, held that “[o]nce a female employee is absent from employment for more than eight weeks, she is no longer within the purview of the MMLA, and, consequently, is not afforded the protections conferred by the statute.” The decision represents a victory for employers that are faced with an ever-increasing barrage of state and federal statutes and regulations designed to protect the rights of employees in the workplace.

The MMLA, which has been in existence since 1972, provides that a female employee – the statute does not cover male employees – who has completed her employer’s probationary period, or who has worked full time for the same employer for three consecutive months, is entitled to take up to eight weeks of leave for the birth or adoption of a child. As long as the employee gives her employer at least two-weeks’ notice of her anticipated date of departure and her intention to return to work, she must be restored to her previous or similar position with the same status, pay, length of service credit, and seniority. The maternity leave may be paid or unpaid at the employer’s discretion. Employers are free to provide maternity leave benefits greater than those required under the statute. An employee who believes her MMLA rights have been violated may file a charge with the Massachusetts Commission Against Discrimination (“MCAD”), the agency charged with enforcing the statute.

In late June 2000, Sandy Stephens informed her employer, Global NAPS, Inc., that she would begin her maternity leave on July 14. She was told that she could remain out of work until October 2. When Stephens telephoned Global on September 27 to confirm that she would be returning within the week, she was told her employment had been terminated. Stephens subsequently sued Global under the MMLA, alleging that Global failed to comply with the MCAD’s Maternity Leave Guidelines, which state in relevant part that “if the employer does not intend for full MMLA rights to apply to the period [of leave] beyond eight weeks, it must clearly so inform the employee in writing prior to the commencement of the leave.” After trial, the jury awarded Stephens more than $2 million in damages (this amount was later reduced to $1.3 million).

Following a series of complicated post-trial legal maneuvers, the case made its way to the SJC. A majority of the Court concluded that neither the MMLA, nor its regulations, require an employer to notify an employee taking more than eight weeks of leave whether MMLA rights will apply to the period of leave extending beyond eight weeks. The Court also concluded that to the extent the MCAD’s Maternity Leave Guidelines suggest that MMLA rights extend beyond the eight-week statutory limit, they are inconsistent with the statute and do not provide a basis for legal relief. The Court pointed out that an employee may have other rights that protect her from termination while on maternity leave, including breach of contract and detrimental reliance, but unless those claims are plead, the employee has no right to her job back after eight weeks under the MMLA.

An important caveat. The MMLA covers eligible female employees who work for a Massachusetts employer with at least six employees. Employees – both female and male – who work for employers with at least 50 employees within a 75-mile radius may be eligible for parental leave of up to twelve weeks under the federal Family and Medical Leave Act. Parental leave under the FMLA runs concurrently with MMLA leave, not in addition to it.