Massachusetts Medical Marijuana User’s Disability Discrimination Claim Reinstated

By: Karen L. Piper

Massachusetts has a medical marijuana law similar to Michigan’s Medical Marijuana Act (“MMMA”) that allows individuals to use marijuana for medical purposes when prescribed by a licensed physician. Massachusetts law says medical marijuana users “shall not be penalized under Massachusetts law in any manner.”

Cristina Barbuto applied for a job with a sales and marketing agency. Barbuto accepted an offer, and then was told there was a drug test. She notified her new employer that she used medical marijuana at home in the evening a few times a week for her Crohn’s disease. The employer told her it would not be a problem. She took the drug test, attended training for one day and worked the next day. That evening she was terminated for testing positive for marijuana. She sued for disability discrimination under state law. Barbuto v Advantage Sales & Marketing LLC, Case No. SJC-1226, July 17, 2017.

The employer responded that the only accommodation the employee sought – her continued use of medical marijuana – “is a federal crime” and “we follow federal law. Thus, accommodating the employee was “facially unreasonable.” It also argued that Barbuto was not discharged because of her disability, but because she failed a drug test that was uniformly required of all new hires.

The lower court dismissed her claim. On July 17, 2017, Massachusetts’ highest court, the Supreme Judicial Court, reinstated her claim. It ruled employers can be held liable for disability discrimination if they fire a medical marijuana user. The Court ruled that an exception to the employer’s drug policy would be a “facially reasonable accommodation” where the employee’s physician opined that medical marijuana was the “most effective medication for the employee’s debilitating medical condition.” And, even if the exception were facially unreasonable, the employer was obligated to engage in a two-step process: 1) engage in the interactive process to determine whether there were “equally effective medical alternatives to the prescribed medication whose use would not be in violation” of the employer’s policy; and 2) if there were no equally effective alternative, show that the employee’s use of marijuana would cause an “undue hardship to the employer’s business” to justify its failure to accommodate.

The Court also rejected the employer’s argument that terminating an employee for using a prohibited drug was not discrimination based on disability. Using this logic, “a company that barred the use of insulin by its employees in accordance with a company policy would not be discriminating against diabetics because of their handicap, but would simply be implementing a company policy prohibiting the use of a medication. Where, as here, the company’s policy prohibiting any use of marijuana is applied against a handicapped employee who is being treated with marijuana by a licensed physician for her medical condition, the termination of the employee for violating that policy effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination.”

The Court made clear that it was not deciding that the employee had suffered disability discrimination; only that the employee’s claim should not have been summarily dismissed. The employer could offer evidence at trial to meet its burden that the accommodation would pose an undue hardship, e.g., because the employee’s use of marijuana would adversely affect her job performance or might pose a significant safety risk. It should be noted that proving either of these effects would be difficult in this case. The employer had little to no data on which to make this type of showing because the employee was terminated after only one day on the job.

While not binding on other courts, lawyers and commentators have expressed concern that the Massachusetts ruling could be adopted by courts in other states and lead to requiring employers to grant exceptions to drug policies for medical marijuana users.

It should also be noted that this case was decided under state disability law, not the Americans with Disabilities Act (“ADA”). Filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) is a prerequisite to filing an ADA lawsuit. However, the EEOC does not accept for processing charges of disability discrimination involving medical marijuana.

There are no published decisions involving a Michigan employee suing his employer for disability discrimination after being discharged for testing positive for [medical] marijuana. In one case an employee who was discharged for medical marijuana sued for wrongful discharge and violation of the MMMA. Like Massachusetts law, the MMMA provides that a medical marijuana user shall “not be subject to penalty in any manner.” The Sixth Circuit Court of Appeals ruled the MMMA “does not impose restrictions on private employers” and dismissed the employee’s claims. Casias v. Wal-Mart Stores Inc., 695 F.3d 428 (6th Cir. 2012). If faced with a medical marijuana issue in the workplace, consult experienced employment counsel, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. August 2017.