Employer May Be Required to Permit Medical Marijuana Use as Reasonable Accommodation

Massachusetts’ highest state court ruled that an employer can be held liable under state anti-discrimination laws for firing an individual for using medical marijuana.

Background. The case of Barbuto v. Advantage Sales and Marketing, LLC involved a medical marijuana user who tested positive for marijuana use during a pre-employment drug test. The employer had a policy prohibiting individuals who test positive from being employed, so the individual was terminated after her first day on the job.

She sued the employer for violating her rights under Massachusetts’ anti-discrimination law to be free from “handicap” discrimination. The employer argued that, because marijuana is an illegal drug under federal law, she was not a “qualified handicapped person” because the only accommodation she sought was a federal crime.

The Court’s Decision. The Massachusetts Supreme Judicial Court ruled that the plaintiff could pursue claims against her employer on the basis of “handicap” discrimination under state law because of her medical marijuana use. The Court found the fact that marijuana is listed as illegal under federal law did not make the accommodation of medical marijuana use per se unreasonable. It noted that “[t]he only person at risk of Federal criminal prosecution of medical marijuana is the employee” and that no liability would attach to the employer by permitting an employee to continue off-site use of medical marijuana.

The Court further also noted that to find the requested accommodation per se unreasonable out of respect to federal law “would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

The Court also ruled that, even if the use of medical marijuana was an unreasonable accommodation, the employer should have engaged in the interactive process with the individual to ascertain whether another accommodation, such as other medications, could have provided the employee with an effective accommodation.

The Court recognized that an employer might be able to establish undue hardship, if it could prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby, jeopardize the company’s ability to perform its business. Specifically, the Court referenced the fact that transportation employers are subject to regulations promulgated by the U.S. Department of Transportation that prohibit any DOT-covered safety-sensitive employee from using marijuana. The Court also recognized that federal government contractors are obligated to comply with the Drug Free Workplace Act. Additionally, the Court noted that an employer could show a safety risk to the public, the employee, or her fellow employees from the continued use of medical marijuana or from the potential that marijuana use would impair an employee’s work performance.

The case makes clear though that the Massachusetts medical marijuana act does not require an employer to permit on-site marijuana use as an accommodation to an employee.  The case did not address the recreational use of marijuana.

What This Means for Employers. Up until this month, courts addressing the issue of medical marijuana users in the workplace had consistently held that, because marijuana use is still illegal under federal law, employers were not required to permit the use, even outside the workplace and outside of work hours, of medical marijuana as a reasonable accommodation. And certainly, it would not be considered a reasonable accommodation under the federal Americans with Disabilities Act. However, this decision provides a new and strikingly different approach to the issue under a state disability discrimination law that may have some appeal to other states. Employers will need to pay close attention to how the state courts in those states in which they have operations react to this issue in the future.