United States: Massachusetts High Court Reinstates Suit By Employee Fired For Off-Duty Medical Marijuana Use

In a highly-anticipated decision issued yesterday, the Massachusetts Supreme Judicial Court reversed a lower court's dismissal of a suit filed by a woman who was fired because of her off-duty use of medical marijuana. The SJC held that the woman's claims for disability discrimination under the Massachusetts antidiscrimination statute, G.L. ch. 151B, could go forward.

The Plaintiff, Christina Barbuto, accepted a job with Advantage Sales and Marketing (ASM) promoting products inside supermarkets. Shortly after she accepted the job, Barbuto was informed that she would need to pass a drug test. Barbuto explained to her new supervisor that she would not pass the test because she used medical marijuana—prescribed by her physician under the 2012 Massachusetts medical marijuana law—to treat Chron's disease. Barbuto told the supervisor that she did not use medical marijuana every day, and she stated that she would not use it before work or at work. The supervisor told Barbuto that her medical marijuana use "should not be a problem." However, after undergoing a training program and completing her first shift, Barbuto was informed by an ASM human resources representative that she was being terminated for testing positive on the drug test. The human resources representative told Barbuto that "we follow federal law, not state law."

Barbuto sued ASM and the human resources representative on several theories, including handicap discrimination under the Massachusetts antidiscrimination statute—G.L. ch. 151B, invasion of privacy, violation of the Massachusetts medical marijuana statute, and wrongful termination in violation of public policy. The Superior Court dismissed all of Barbuto's claims except the claim for invasion of privacy. Barbuto appealed the dismissal.

Most of the SJC's twenty-seven page opinion addresses Barbuto's handicap discrimination claims. Under the Massachusetts antidiscrimination statute, G.L. ch. 151B, it is illegal for an employer to terminate an employee who is a qualified handicapped person who is capable of performing the essential functions of the position with reasonable accommodation, unless the employer can demonstrate that the accommodation would impose an undue hardship to the employer's business. The question that the SJC wrestled with in this case is whether the off-site use of medical marijuana can be a reasonable accommodation under some circumstances.

On appeal, ASM argued that permitting Barbuto's continued off-site use of medical marijuana was a "facially unreasonable" accommodation because the possession of medical marijuana is a crime under Federal law. The SJC rejected this argument, and held that "[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 SJC reasoned that only the employee is at risk of Federal criminal prosecution for the employee's off-site possession of medical marijuana. "An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use." Instead, the SJC held that "[w]here, 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, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation."

The SJC held that, as with other requests for reasonable accommodation, it would be ASM's burden to show that Barbuto's request for an accommodation for the off-site use of medical marijuana would cause an undue hardship to its business. The SJC suggested that an employer like ASM might be able to show that continued use medical marijuana could interfere with the employee's performance of her job duties, or present an "unacceptably significant safety risk to the public, the employee, or her fellow employees." The SJC acknowledged that some employers may be able to establish an undue hardship by showing that employees' use of medical marijuana could harm the employers' business due to contractual or statutory obligations, such as Federal DOT requirements applicable to transportation businesses, or requirements applicable to Federal contractors regarding drug-free workplaces. However, as the SJC pointed out, these arguments are for the employer to make at the summary judgment or trial stage, and do not affect whether the employee can assert a claim in the first place.

It is important to note that this case only addresses an employee's off-site use of medical marijuana. The language of the medical marijuana statute specifically excludes an employee's on-site use of medical marijuana from its protections. Interestingly, the SJC based its finding that the off-site use of medical marijuana may be a reasonable accommodation on the statute's language regarding on-site use. The SJC held that the exclusion of on-site use—with no mention of off-site use—"implicitly recognizes that the off-site use of marijuana might be a permissible 'accommodation.'"

While the SJC overturned the dismissal of Barbuto's disability discrimination claims, it affirmed the dismissals of her other claims, for violation of the medical marijuana statute and for wrongful termination in violation of public policy.

The SJC observed that nothing in the medical marijuana statute's text explicitly provides for a private cause of action for an individual claiming to have been fired for the off-site use of medical marijuana. The SJC also found no evidence that Massachusetts voters intended to create such a cause of action when they approved the ballot initiative in 2012. The SJC pointed out that because a comparable cause of action already exists under the Massachusetts antidiscrimination statute, there is no need to find an implied cause of action under the medical marijuana statute.

With regard to Barbuto's wrongful termination claim, the SJC noted that Massachusetts law recognizes a limited exception to "at will" employment in cases where termination violates a "clearly established public policy." Because an employee who believes that he or she was wrongfully terminated because of the off-site use of medical marijuana already has an avenue for seeking redress under the antidiscrimination statute, the SJC did not feel that it was necessary to expand the "public policy" exception to at will employment, and allowed the dismissal of that claim to stand.

In light of this significant opinion, employers should reevaluate their drug use and testing policies, as well as their procedures for handling requests for accommodations for handicaps.

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.

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