On July 17, 2017, the Supreme Judicial Court of Massachusetts broke from a line of precedent among state and federal courts by allowing a medical marijuana user with a valid state law prescription to pursue a claim for disability discrimination after she was terminated for a positive drug test. In Barbuto v. Advantage Sales and Marketing, LLC, SJC, No. 12226 (July 17, 2017), the court held that an employee can survive a motion to dismiss if they are fired or otherwise punished for using medical marijuana, even though marijuana use is illegal under federal law. The broader implication of this decision is that simply relying on the federal prohibition may not be sufficient for the dismissal of state law claims.
In Barbuto, plaintiff suffered from Crohn’s disease, was a qualifying patient under the Massachusetts medical marijuana law and had a prescription to use marijuana for medical purposes. Notwithstanding her prescription and disclosure of the same to the Defendant-employer (and Defendant’s assurance that it was not an issue), Plaintiff was terminated for a positive urine test for marijuana. Defendants made two arguments for dismissal of the state handicap discrimination claim: (1) Plaintiff did not adequately allege she was a “qualified handicap person” because the only accommodation she sought – continued use of medical marijuana – is a Federal crime and therefore unreasonable and (2) even if she were a “qualified handicap person” she was terminated because she failed a drug test that all employees are required to pass, not because of her handicap. These arguments are similar to those raised by employers in other cases relating to medical marijuana use and positive drug tests, most of which rely decisions under the ADA that do not require an employer to accommodate illegal drug use. The Massachusetts court rejected both of these arguments and the court’s reasoning could have far-reaching implications for employers.
On the first argument –the court found that Massachusetts law required an employer to make reasonable accommodations for handicapped employees, and that allowing the use of marijuana which is legal under Massachusetts law, but not federal law, is not per se unreasonable.
On the second argument – the court found where a company’s policy prohibiting any use of marijuana is applied against a handicapped employee who is being treated with marijuana by a licensed physician, the termination of the employee for violating that policy is appropriately recognized as handicap discrimination. Unless, the employer could demonstrate that an exemption from the drug policy would impose an undue hardship on the employer’s business.
The take aways - (1) a positive drug test of a medically prescribed drug, including marijuana, does not relieve the employer of its obligation to engage in the interactive process; (2) exemption from the drug policy is not necessarily an unreasonable accommodation for a medically prescribed drug, including marijuana; and (3) employers cannot simply rely on violation of the company’s drug policy to support a termination when a valid prescription for medical marijuana is at issue.
The broader take away from this decision is that reliance on federal law and the reasoning underlying decisions for reasonable accommodation under the ADA may not be sufficient to dismiss a discrimination claim under state law. The language of the state medical marijuana statutes is key. Most state laws, such as Ohio, Georgia and Washington, explicitly write out the obligation of employers to accommodate in the medical marijuana law itself. However, some states, namely Arizona, Delaware and Minnesota, have taken a contrary approach, and explicitly placed language in their statutes requiring employers to accommodate legal out of work marijuana consumption, unless the employer can show that the usage is negatively impacting performance or job responsibilities. As noted by the Court here, the language in the Massachusetts statute falls somewhere in the middle, stating that employers are not required to accommodate any on-site medical marijuana use at any place of employment. Further, some states, such as New York, write into their state discrimination statutes that a certified patient under the medical marijuana statute has a disability. As support for expanding legalization of medical marijuana grows, and as medical marijuana is now legal in over half of the states, this is certainly something for employers to keep tabs on. For a fuller analysis of this issue, and others facing marijuana usage in the workplace, please read Workplace Marijuana Accommodations: The Road Ahead.