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July 20, 2017

Massachusetts Supreme Judicial Court rules that terminating an employee for using medical marijuana may constitute handicap discrimination.

By Callan Stein and David Chorney

Five things every Massachusetts employer should know about this landmark case.

On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”) ruled, in Cristina Barbuto v. Advantage Sales and Marketing, LLC, that an employee terminated because of a positive drug test due to lawfully-prescribed medical marijuana use may sue her former employer for handicap discrimination. This decision represents a dramatic departure from similar cases in other jurisdictions that consistently dismissed wrongful termination claims based on legal (under state law) marijuana use, and creates new and significant potential employer liability for addressing employees’ medical marijuana use. What follows is a brief overview of this groundbreaking case, and five take-aways for Massachusetts employers.

Facts of the Barbuto Case:

Cristina Barbuto was an entry-level employee with Advantage Sales and Marketing (“ASM”). Upon her hire, Ms. Barbuto disclosed to ASM that she would fail the company-mandated drug test because she used medical marijuana prescribed by her doctor to treat her Crohn’s disease. Although ASM initially told Ms. Barbuto that her medical marijuana use “should not be a problem,” ASM terminated her employment after she took and failed the drug test. Ms. Barbuto subsequently sued ASM and its Human Resources representative alleging, among other things, handicap discrimination, wrongful termination in violation of public policy, and invasion of privacy. The trial court dismissed all claims but the invasion of privacy claim. On appeal, however, the SJC overturned the dismissal of the handicap discrimination claims, ruling that Ms. Barbuto could pursue those claims based on ASM’s termination of her for using medically-prescribed marijuana.

Five Things Every Massachusetts Employer Should Know:

1. The SJC’s decision is a stark departure from traditional marijuana jurisprudence in other jurisdictions, and may well mark a turning point here in Massachusetts.

The SJC’s Barbuto opinion is a dramatic departure from the rulings of other state courts – including many states at the forefront of the medicinal, and even recreational, marijuana movement (e.g., California, Colorado, and Washington) – that have consistently rejected wrongful termination claims based on marijuana use that is otherwise legal in those states. In most of those cases, the courts held that an employer may take an adverse action against an employee for use of marijuana because possession of marijuana – medicinal or recreational – is still illegal under federal law, irrespective of state laws or regulations permitting it. The SJC not only acknowledges this departure from precedent in other jurisdictions, but appears to embrace it by distinguishing Barbuto and Massachusetts law from those other cases and affirmatively rejecting the oft-cited defense that an employer is free to terminate an employee for using medical marijuana because the federal government has not yet approved marijuana for medicinal use. Overall, the SJC’s reasoning suggests an entirely new perception of medical marijuana, one that diverges from viewing marijuana simply as an illicit drug and encourages viewing it as one would any other prescribed medicine. At one point in the opinion, the SJC even equates an individual’s use of medical marijuana to a diabetic’s use of insulin. While it is too early to predict the precise application of this ruling to future cases, the SJC appears to have sent a clear signal to trial courts to follow a similarly progressive approach to medical marijuana.

2. Barbuto is still about handicap discrimination; it does not create a marijuana discrimination law.

To be clear, it was not Ms. Barbuto’s medical use of marijuana that justified her handicap discrimination claim, but rather it was her underlying disability that necessitated the use of marijuana as medicine. It is possible that some will misinterpret the Barbuto decision as creating some new “marijuana discrimination law” that creates a new protected class in the form of medical marijuana users. But that is not the case. Rather, the SJC’s decision relies exclusively on existing handicap discrimination laws. These laws, codified at M.G.L. ch. 151B, prohibit employers from dismissing or refusing to hire an individual because of a handicap so long as he/she can perform the essential functions of the job, with or without a reasonable accommodation. It was under this framework that the SJC found that Ms. Barbuto could bring a discrimination claim on the basis of her handicap, i.e. Crohn’s Disease, because she could still perform the essential functions of the job with a reasonable accommodation, namely, a departure from ASM’s drug policy to accommodate her off-site use of medical marijuana.

3. Notwithstanding the Barbuto ruling, the SJC has still left the door open for employers to forbid even lawful marijuana use in certain circumstances.

One thing the SJC’s decision in Barbuto does not do is require employers to accept employees’ legal marijuana use in every situation. The SJC was clear that an employer may still refuse to accommodate an employee’s use of medical marijuana where it can establish that the use “would cause an undue hardship to the employer’s business.” Although the SJC made it harder for an employer to meet this burden by explicitly rejecting the notion that marijuana use should be considered per se unreasonable because it remains illegal under federal law, the SJC explicitly left open the possibility that an employer could meet this burden where off-site medical marijuana use would impair the employee’s work, create a safety risk, or violate a contractual, statutory, or regulatory obligation of the employer.

4. Employers must engage with its employees to try and resolve handicap accommodation issues before terminating them.

One of the biggest criticisms the SJC had of ASM was its failure to engage with Ms. Barbuto to find an alternate reasonable accommodation before terminating her. Under Massachusetts law, even if ASM could legally refuse to permit an employee to use medical marijuana, ASM was still required to engage Ms. Barbuto in an “interactive process” to explore whether there were any equally effective alternatives to her use of marijuana. But ASM failed to do so, and that failure clearly impacted the SJC’s ultimate decision. Employers would be wise to heed the SJC’s stern warning that “failure to explore a reasonable accommodation alone is sufficient to support a claim of handicap discrimination.” Employers should ensure that they have a policy that mandates such an interactive process any time an employee requests an accommodation, whether that accommodation includes the use of medical marijuana or other treatment for any disability or handicap.

5. Because the Barbuto decision does not require employers to permit unrestricted use of medical marijuana, it creates an immediate need for employers to have a plan and detailed policies for addressing this issue when it arises.

As noted above, the Barbuto decision does not create a blanket rule preventing employers from taking employment action based on employee medical marijuana use in all circumstances. But by permitting terminated employees to sue for handicap discrimination in certain situations, the decision underscores the need for employers to be aware of these issues and to establish detailed policies to deal with requests for accommodations as they arise. Having a plan for dealing with medical marijuana use by employees will enable employers to avoid lawsuits and civil liability, whether it be for handicap discrimination or other permissible claims. For example, even the trial court acknowledged that Ms. Barbuto had a valid invasion of privacy claim against ASM based on her allegation that ASM’s drug testing policy was not reasonable and/or commensurate with her job duties or industry standards. Employers should review those and other policies to ensure that they appropriately balance their interest in identifying drug use against their employees’ right to privacy.

About the Authors

Callan Stein

Callan Stein was formerly a litigation associate at Barrett & Singal, P.C. His practice focused on the areas of white-collar criminal defense, including securities and banking fraud, corporate and commercial civil litigation, and professional licensing.

David Chorney

David Chorney is an associate in the health care department of Barrett & Singal.  He regularly represents small and large businesses and non-profits in regulatory affairs, corporate governance issues, and mergers and acquisitions. You can find him on LinkedIn.

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