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July 18, 2017

Legal Update
Kenneth N. Thayer

Employee fired for medical marijuana use can sue employer for discrimination

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An employee who was terminated as a result of her lawful medical use of marijuana has the right to sue her former employer for handicap discrimination under Massachusetts law, the state Supreme Judicial Court has ruled. In the decision, Barbuto v. Advance Sales and Marketing, the court held that while the Massachusetts statute legalizing medical marijuana does not authorize private lawsuits to enforce the right to use the drug, prescribed marijuana users who suffer adverse employment actions as a result of their use of the drug can file suit under the state’s antidiscrimination law, Massachusetts General Laws chapter 151B.

The plaintiff, Cristina Barbuto, had a valid prescription to use marijuana as treatment for her Crohn’s disease. When Barbuto was hired to an entry-level position by Advance Sales and Marketing (ASM) and told that she would have to take a drug test, Barbuto explained to her supervisor that she would test positive for marijuana due to her condition and the prescribed treatment. Barbuto was initially told that her use of medical marijuana would not be a problem, and she submitted to the test. A week later, she completed a training program and attended her first day of work; she did not use marijuana on the job and was not impaired while at work. Nonetheless, ASM called Barbuto that evening and told her she was being terminated because she tested positive for marijuana. Following her termination, Barbuto filed a discrimination charge against ASM and her supervisor with the Massachusetts Commission Against Discrimination, and subsequently a lawsuit in Superior Court alleging handicap discrimination in violation of M.G.L. chapter 151B, as well as denial of her “right or privilege” to use marijuana under the state medical marijuana act, and several other related claims.

The superior court dismissed Barbuto’s complaint, and the SJC granted her request for direct appellate review. In reversing the lower court’s dismissal and reinstating Barbuto’s lawsuit, the SJC ruled that employees who use marijuana prescribed by their physicians are “qualified handicapped persons” under Chapter 151B and are entitled to protection from adverse employment decisions based on their marijuana use. The court explained that in Massachusetts, using marijuana prescribed by a physician “is as lawful as the use and possession of any other prescribed medication.” Accordingly, the SJC found that an exception to an employer’s drug policy to permit the medical use of marijuana may be a reasonable accommodation, at least 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.”

In reaching this decision, the court rejected ASM’s argument that because using marijuana is a federal crime, it would be unreasonable to require Massachusetts employers to accommodate their employees’ use of the drug, even where prescribed. The court observed that “nearly ninety percent of the States have enacted laws regarding medical marijuana” since the federal government classified marijuana as a controlled substance, and that only the employee—not the employer—faces potential adverse consequences under federal law for using it.

Notably, the SJC did not go so far as to forbid employers from taking adverse action against medical marijuana users under any circumstances. Indeed, the court recognized that employers may terminate or refuse to hire employees who use medical marijuana if doing so “would impose an undue hardship on the employer’s business,” such as by creating a public safety risk or jeopardizing the employers’ contractual or statutory obligations. The court remanded Barbuto’s case against ASM to the superior court, where ASM will have an opportunity to present evidence that such an “undue hardship” exists here.

Finally, the court also ruled that, in enacting the medical marijuana statute, the Massachusetts legislature did not intend to create new private causes of action—that is, to authorize lawsuits to enforce the general right to use marijuana when prescribed—and that Barbuto’s suit was properly treated solely as one under antidiscrimination laws, which afford adequate protection to users in her position.