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Use of Medicinal Marijuana Not a Facially Unreasonable Accommodation Under Massachusetts Employment Discrimination Law

Posted on Jun. 20 2017.

In a case that may be a precursor of things to come across the country as more and more states “legalize” the medicinal use of marijuana, in a July 17, 2017 decision in Barbuto v. Advantage Sales and Marketing, LLC, SJC 12226, 2017 Mass. LEXIS 504 (July 17, 2017) the Massachusetts Supreme Judicial Court determined that a plaintiff medical marijuana user had a cause of action for handicap discrimination under a Massachusetts law that prohibits employment discrimination based on, among other things, handicapped status.

Cristina Barbuto, who suffers from Crohn’s disease, was offered an entry-level position with defendant Advantage Sales and Marketing, LLC (“ASM”) in the late summer of 2014, and accepted the offer. After accepting the offer, she was informed that she was required to take a mandatory drug test. Barbuto then told the ASM employee who would be her supervisor that she would test positive for marijuana use because she was a qualifying medical marijuana patient under Massachusetts law whose physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes because of the symptoms associated with her Crohn’s disease. She added that she did not use marijuana daily and would not consume it before work or at work. The supervisor told her that her medicinal use of marijuana should not be a problem but that he would confirm that with others at ASM, which he did and later telephoned her to relay that information.

On September 5, 2014, she submitted a urine sample and on September 11th she started in the ASM training program and completed her first day of work the next day. That evening, Joanna Villacruz, ASM’s human resources representative, and a co-defendant in the lawsuit, telephoned Barbuto to tell her that because she tested positive for marijuana she was being terminated and also told Barbuto that she did not care if her marijuana use was medicinal because “we follow federal law, not state law.”

Barbuto subsequently filed a charge of discrimination against ASM and Villacruz with the Massachusetts Commission Against Discrimination (“MCAD”). Which she later withdrew so she could file a complaint in Massachusetts Superior Court. That complaint included six claims: (1) handicap discrimination, in violation of Massachusetts General Law c. 151B, § 4(16); (2) interference with her right to be protected from handicap discrimination, in violation of 151B, § 4(4A); (3) aiding and abetting ASM in committing handicap discrimination, in violation of 151B, § 4 (5); (4) invasion of privacy, in violation of 214, § 1B; (5) denial of the “right or privilege” to use marijuana lawfully as a registered patient to treat a debilitating medical condition, in violation of the Medical Marijuana Act; and (6) violation of public policy by terminating her for lawfully using marijuana for medicinal purposes. The second and third claims were brought against Villacruz alone and the rest were brought against both ASM and Villacruz. The defendants tried unsuccessfully to remove the case to federal court and then filed a motion to dismiss the complaint in the superior court, which was granted except as to the invasion of privacy claim. At Barbuto’s request, the judge entered a separate and final judgment on the dismissed claims and Barbuto filed a notice of appeal regarding the dismissed claims and the Supreme Judicial Court granted Barbuto’s application for direct appellate review.

Since the claims had not survived the motion to dismiss stage in the trial court, the Supreme Judicial Court’s review was limited to determining whether, taking the claims in the light most favorable to Barbuto, she had adequately stated a claim for relief. The court began its review by noting that, like many other states, Massachusetts had allowed limited possession of marijuana for medical treatment, while acknowledging that possession of marijuana remains illegal under federal law. It then noted that under G.L. c. 151B, § 4(16) it is an “unlawful practice … [f]or any employer … to dismiss from employment or refuse to hire …, because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” Barbuto alleged that she was a “handicapped person” because she suffered from Crohn’s disease and that she was a “qualified handicapped person” because she could perform the essential functions of her job with a reasonable accommodation to her handicap, that is, with a waiver of ASM’s policy barring anyone from employment who tests positive for marijuana use and the court agreed.

Since the court agreed she was handicapped, to state a claim for handicap discrimination, Barbuto had to show that the accommodation she claimed was necessary was “facially reasonable.” The defendants argued that it was not facially reasonable for two reasons: 1) she was not a “qualified handicapped person” because the only accommodation she sought, continued use of medical marijuana, is a federal crime; and 2) even if she was a qualified handicapped person, she was terminated because she failed a drug test that all employees are required to pass, not because she was handicapped.

As to the first argument, that is, that the requested accommodation was facially unreasonable because marijuana possession is a federal crime, the court stated that if an employee has a debilitating ailment that can be alleviated with medication and the employer had a drug policy that prohibited her taking that medication, the employer would have a duty to engage in an interactive process to determine if there were an equally effective medical alternative that would not violate the policy and if no such equally effective alternative exists, the employer would bear the burden of proving that the employee’s use of the medication would cause an undue hardship to its business in order to justify the refusal to make an exception to the drug policy as an accommodation. It also noted that under Massachusetts law the possession of medical marijuana is legal and if in the opinion of an employee’s physician it is the most effective treatment, an exception to the employer’s drug policy is a facially reasonable accommodation and further stated that the only person at risk of federal prosecution for possession would be the employee not the employer. Finally, it noted that even if the accommodation of the use of medical marijuana was facially unreasonable, ASM owed Barbuto the duty under applicable law to participate in the interactive process before it terminated her and its failure to do so alone would be sufficient to support a claim of handicap discrimination.

As to the defendants’ second argument, that she was fired for failing the drug test, not for being handicapped, the court summarily dealt with that argument by noting “where, as here, the company’s policy prohibiting any use of marijuana is applied against a handicapped employee who is being treated with marijuana by a licensed physician for her medical condition, the termination of the employee for violating that policy effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination.”

Because it determined that Barbuto’s use of medical marijuana under the circumstances of the case was not facially unreasonable, it reversed the trial court’s dismissal of the claims. It should be noted though, that the Supreme Judicial Court did point out that just because the claims survived a motion to dismiss, it did not mean that defendants could not later prove that the accommodation was not reasonable because it would impose an undue burden on its business. However, it is clear that this is an issue that courts will have to grapple with in the states that have determined that medical marijuana use is permitted and it seems at least arguable that in Massachusetts, the use of medical marijuana away from work, may become a reasonable accommodation under certain circumstances.