On July 17th, the Supreme Judicial Court ruled that
Massachusetts employers may not terminate an employee merely
because of his or her off-site use of medical marijuana. According
to the Court, the use of medically-prescribed marijuana is as
lawful as the use of any other prescribed medication, and employees
may assert claims of handicap discrimination under state law
against employers who fail to accommodate such use.
The case was brought by Cristina Barbuto, who accepted an offer of
employment from Advantage Sales and Marketing (ASM) in 2014. When
Barbuto was informed that she would be subject to a mandatory drug
test, she told her supervisor that she would test positive for
marijuana, which had been prescribed by her physician to treat her
Crohn's disease. Barbuto stated that she used this medication
at home in the evening, usually 2-3 times per week, and would not
consume it before or at work. ASM fired Barbuto shortly after she
began work when she tested positive for marijuana, stating that it
followed federal, not state, law on the issue.
Barbuto brought several claims against ASM based on her
termination, including a state law claim of handicap
discrimination. She argued that she was a qualified handicapped
person, capable of performing the essential functions of her job
with a reasonable accommodation; namely, a waiver of ASM's
policy barring employment for those who test positive for
marijuana. ASM, on the other hand, contended that this
accommodation was facially unreasonable because the use of
marijuana - medical or otherwise - is still a crime under Federal
law.
Yesterday, the SJC ruled in favor of the employee, holding
"[t]he 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 Court reasoned that the
only person at risk of Federal criminal prosecution is the
employee, and thus the illegality of possession at the Federal
level is not a valid concern to most Massachusetts employers.
Instead of terminating an employee, or taking any other adverse
action, based on a general policy ban against marijuana use,
employers have a duty to engage in an interactive process with the
employee to determine whether an equally effective medical
alternative is available that would not violate the policy. Where
no equally effective alternative exists, the burden is on the
employer to prove that the employee's use of medical marijuana
would cause an undue hardship to the business in order to justify a
refusal to accommodate the needs of the handicapped employee.
The SJC did not opine on the merits of the case, which will now be
remanded to the trial court to determine whether ASM took
appropriate action in assessing Barbuto's accommodation
request. The ruling nevertheless puts the onus squarely on the
shoulders of employers under state law to accommodate the needs of
employees who are being treated with medical marijuana.
Massachusetts employers should immediately take these steps to
avoid exposure to claims of handicap discrimination:
" Amend policies and practices to treat medical
marijuana equally with other prescription drugs. Under the
SJC's ruling, outright bans of marijuana use by employees will
not be viewed favorably by the courts. Nevertheless, as with other
prescription drugs, employers may state that medical marijuana use
must not impair an employee's ability to perform the essential
functions of his or her job effectively and in a safe manner that
does not endanger other individuals in the workplace. Note also
that the Massachusetts law legalizing medical marijuana states
clearly that it does not require "any accommodation of any
on-site medical use of marijuana in any place of employment."
Thus, employers may still maintain a general ban of marijuana use
while on company premises.
" Engage in an individualized interactive process with
each employee or applicant who discloses use of medical
marijuana. For employers who have concerns about an
employee's use of medical marijuana, the law requires the
employer to engage in an interactive process to determine if the
use can be accommodated before the employer takes any adverse
action. Employers are permitted to ask whether an equally effective
medical alternative is available, and may ask the employee to have
his or her physician certify that medical marijuana is the most
effective medication for the employee's medical
condition.
" Identify the positions or circumstances in which
accommodation of medical marijuana use would cause an undue
hardship. As with any other accommodation request,
employers are not required to allow medical marijuana use that
would cause an undue hardship to their business. The SJC's
opinion acknowledges several specific situations in which such
undue hardship could be shown:
1. Employers who operate under Federal government contracts or
receive Federal grants and are obligated to comply with the Drug
Free Workplace Act;
2. Employers in the transportation industry subject to U.S.
Department of Transportation regulations prohibiting marijuana use
by safety-sensitive employees; and
3. Where an employer can prove that continued use of medical
marijuana would impair work performance or pose an
"unacceptably significant" safety risk to employees or
the public, for example employees who operate heavy machinery or
supervise young children.
Note, however, that the burden is always on the employer to prove
that medical marijuana use subjects the employer to such risks and
hardships.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.