Are Employers Going to be Required to Accommodate Medical Marijuana Use?
State-registered medical cannabis patients may now sue a private employer for discrimination under Massachusetts’ law if they are fired for their off-the-jobmarijuana use, according to landmark ruling issued July 17, 2017, by the Massachusetts Supreme Judicial Court. Citing the Massachusetts Medical Marijuana Act, the court states that patients shall not be denied “any right or privilege” due to marijuana use. The Massachusetts Medical Marijuana Act, passed in 2012, states that “qualifying patients” should not be punished under state law for medical use of marijuana.
In Barbuto v. Advantage Sales and Marketing LLC, the plaintiff, Cristina Barbuto, accused the company of discrimination. She had accepted a position with Advantage Sales and Marketing in 2014. Barbuto suffers from Crohn’s disease, a gastrointestinal condition that can cause weight loss. As a result of her condition, Barbuto has “little or no appetite,” and struggles to maintain her weight, something made easier with marijuana use, according to court documents. After one day of promoting products in a supermarket, Barbuto was fired after she was informed by human resources that she did not pass the drug test and that the company follows federal, not state law.
Advantage Sales and Marketing argued that Barbuto did not make her handicapped status clear and – even if it had been clear – she still would have been terminated as all employees are required to pass a drug test, but the court didn’t agree. “One generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it,” the Massachusetts Supreme Judicial Court opined. “By the defendants’ 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.”
The court stated it is “not facially unreasonable” for employers to make exceptions to their substance abuse policies in instances where employees are using cannabis at home to treat a debilitating condition. “The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation.”
The unanimous verdict reverses a lower court decision and is contrary to rulings in California, Colorado, Oregon and Washington. In each of those states, the supreme courts ruled that employees had no legal protections if they were fired without cause for their state-sanctioned use of medical cannabis. However, the medical marijuana laws of the following states do contain anti-discrimination or reasonable accommodation provisions: Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania and Rhode Island. In other states, the statute explicitly provides no protection or is silent. None of these laws require employers to allow workers to use marijuana during work. Workers can still be drug tested and fired for failing a drug test if it is not part of an approved treatment plan for a medical condition.
Employers should be cautious when making any adverse decisions related to an employee’s use of medical marijuana.