Tuesday, July 18, 2017

Barbuto v. Advantage Sales & Marketing: Is it unlawful to fire an employee for using medical marijuana?

In Barbuto v. Advantage Sales & Marketing, No. SJC-12226 (July 17, 2017), the Supreme Court of Massachusetts held that an employer may be required by Massachusetts state law to accommodate an employee who uses marijuana to treat a disabling medical condition. The court rejected the employer's contention that accommodating marijuana use is per se unreasonable because federal law continues to prohibit marijuana possession even when legally prescribed by a physician. 

Barbuto is notable for being perhaps the first major decision in which a court has held that users of medical marijuana may enjoy some protections in the employment arena. The court explained:

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 [Massachusetts law] 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.
Significantly, the court pointed out that, under Massachusetts law, a user of medical marijuana is not merely protected against arrest, prosecution, or civil penalty for medical use of marijuana, but also may not be "denied any right or privilege." As a result, an exception to an employer's drug policy could not possibly be a facially unreasonable accommodation, or else an employee would be deprived of the "right or privilege" of employment solely because of the use of medical marijuana.

By contrast, as the Massachusetts Supreme Court noted, the California Supreme Court rejected a disability discrimination claim under California law by an employee who was terminated for use of medical marijuana. Unlike the Massachusetts law authorizing medical marijuana, the California law does not protect users of medical marijuana against the denial of "any right or privilege." Thus, in Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008), the California Supreme Court held that California law merely protects medical marijuana users against criminal penalties and does not require employers to accommodate marijuana use by their employees.

Although tolerating the use of medical marijuana is a facially reasonable accommodation under Massachusetts law, such an accommodation is not required if, as with any other reasonable accommodation, the employer can show that it would pose an undue hardship, As examples, the Massachusetts Supreme Court noted that accommodating medical marijuana might create an undue hardship if it impairs an employee's work performance or poses an "unacceptably significant" public safety risk or if the accommodation would violate a statutory obligation under federal law.

Because federal law has not made an exception for medical marijuana, users of medical marijuana are limited to seeking protection under state or local laws. The Americans with Disabilities Act does not prohibit an employer from basing an action on an employee's use of illegal drugs as provided by federal law. 

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.