Massachusetts High Court: Medical Marijuana User Can Sue for Handicap Discrimination

By Skoler, Abbott & Presser, P.C.

July 17, 2017

A year ago, a Massachusetts state court considered for the first time whether employers are required to accommodate the off-site use of medical marijuana by disabled employees.  The court answered that question in the negative, ruling that a private employer has no duty to tolerate an employee's use of medical marijuana as an accommodation for a disability under Chapter 151B of the Massachusetts General Laws.  The court reasoned that the use of marijuana is still illegal under federal law and cited a number of courts in other states that have also ruled that employers are not required to accommodate disabled employees who use medical marijuana.

Departing from this national trend, the Supreme Judicial Court today partially reversed the Superior Court's decision.  In particular, the Court concluded that an employee who was fired for failing a pre-employment drug screen based on her use of medical marijuana could sue her former employer for handicap discrimination under Chapter 151B.  The Court reasoned that an exception to an employer's drug policy to permit the off-site use of medical marijuana is a "facially reasonable" accommodation for a disabled employee where the drug has been prescribed by a physician and is more effective than any alternative medication.

According to the Court, the medical marijuana law itself compels this result because the statute guarantees that users will not be denied any "right or privilege" because of their use of medical marijuana, and the right to reasonable accommodations provided by Chapter 151B is within the scope of that guarantee.  The Court also noted that, by expressly allowing employers to refuse to allow on-site use as an accommodation, the medical marijuana law impliedly recognizes that off-site use "might be a permissible accommodation."  Finally, the Court ruled that the mere fact that marijuana remains illegal at the federal level does not automatically make off-site use by disabled employees unreasonable as an accommodation.  The Court observed that the employer does not commit any crime by tolerating such use and, if there is any risk to the employer's business associated with the accommodation, the employer can avoid liability by demonstrating that it would be an undue hardship, e.g. that it would create an unacceptable safety risk or violate a contract or statutory obligation, like the obligations imposed on employers who are subject to regulation by the U.S. Department of Transportation.

As a result of this decision, captioned Barbuto v. Advantage Sales &  Marketing, LLC, employees now have a broad avenue of relief against employers who take adverse action against them for using medical marijuana.  Indeed, unless an employer can demonstrate that the accommodation would be an undue hardship, an employee who is passed over, disciplined or fired for using the drug will have a strong claim of handicap discrimination under Chapter 151B, particularly if the employer failed to engage in the interactive process to try to identify an equally effective, lawful alternative.  Accordingly, employers who are considering action against an employee who tests positive for marijuana should proceed with extreme caution if the employee has a valid prescription to use the drug.

Skoler, Abbott & Presser, P.C., will be holding a Breakfast Briefing in the near future to explore the consequences of this decision for employers.  If you have additional questions about the ruling in the meantime, feel free to contact any of our attorneys.