What’s the background?
On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”) decided Barbuto v. Advantage Sales and Marketing, LLC (“Barbuto”), a case involving an employer’s decision to fire the plaintiff, Ms. Barbuto, after her employer’s drug test revealed the presence of marijuana in her system. According to her complaint, Ms. Barbuto suffers from Crohn’s Disease, an inflammatory bowel disease. To maintain a healthy weight, she consumes small amounts of marijuana two-to-three evenings per week, in accordance with her doctor’s prescription. She was fired after only one day on the job, when her drug test returned a positive result for marijuana. Ms. Barbuto filed suit, challenging her termination on the grounds that she is an otherwise qualified handicapped person. She argued that her employer was required to tolerate her marijuana use (outside of work) as a reasonable accommodation for her disability, and notwithstanding the employer’s policy to the contrary.
In one of the first decisions of its kind, the SJC held that notwithstanding the federal law which criminalizes marijuana (and the employer’s own policies against drug use), the Massachusetts Medical Marijuana Act and state anti-discrimination law both protect Ms. Barbuto and her marijuana consumption, to the extent it relates to treatment of her medical condition. Accordingly, her employer was obligated to engage in an “interactive process” with Ms. Barbuto to determine whether her marijuana use, or some other alternative, could accommodate her condition without imposing an undue burden on her employer. In the absence of any alternatives, the employer would be required to allow the marijuana use unless it could establish that doing so would cause it “undue hardship.”
What does this mean for employers?
This case is a reminder that an employer’s duty to accommodate disabled employees begins with the interactive process, in which employer and employee are responsible for communicating back and forth to mutually agree on a reasonable accommodation for the employee’s disability. As the Barbuto case illustrates, providing a reasonable accommodation may even require an employer to excuse the employee from general workplace rules when this can be accomplished without undue hardship to the employer. Nothing in the Court’s decision, however, requires an employer to allow marijuana use during working time.
Will employers have to allow any disabled employee to use medical marijuana?
No. The Court pointed out that some employers may be within their rights to prohibit marijuana use where they can establish that to do so would present an undue hardship to the employer, or where the use of marijuana undermines the employee’s ability to perform: “an employer might prove that the continued use of marijuana would impair the employee’s performance of her work or pose an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees…. Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business.” For example, transportation employees and others subject to federal safety regulations might legitimately prohibit marijuana use in order to comply with these federal rules.
You can find more information on the Massachusetts Medical Marijuana Act here.