United States: Massachusetts SJC: Medical Marijuana Users May Be Safe From Employer Discrimination

Last Updated: August 2 2017
Article by Douglas Schwarz and Siobhan E. Mee

In a landmark decision that is likely to influence other states, a recent ruling in Massachusetts protects medical marijuana users against discrimination by their employers absent undue hardship.

In Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court (SJC) held that an employee who uses medical marijuana may claim handicap discrimination against an employer for failing to waive mandatory drug testing for marijuana use absent an undue hardship to the employer's business.1 The SJC was not troubled by the fact that the employee's possession of marijuana is a violation of federal law. The court also made clear that where an employee alleges that a reasonable accommodation would enable the employee to perform the job, an employer's failure to consider the proposed accommodation can itself violate the law. This LawFlash describes the legal backdrop of the case and the ruling, and identifies key implications for employers.

Legal Backdrop

In 2012, Massachusetts voters approved an initiative petition, "An Act for the Humanitarian Medical Use of Marijuana" (the Medical Marijuana Act), decriminalizing the use of medical marijuana by qualifying patients. The Medical Marijuana Act protects a "qualifying patient" suffering from a "debilitating medical condition" from "arrest or prosecution, or civil penalty, for the medical use of marijuana."2 The Medical Marijuana Act also provides that "[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions."3

Consistent with state laws across the country, Massachusetts law protects individuals from adverse employment actions on the basis of handicap. Specifically, an employer may not dismiss from employment or refuse to hire "any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation" unless the accommodation would impose an undue hardship on the employer's business.4

The SJC's Decision

In 2014, Advantage Sales and Marketing (ASM) offered an entry-level position to Cristina Barbuto. As part of the offer of employment, ASM required Barbuto to submit to a mandatory drug test. Barbuto explained to ASM that she suffers from Crohn's disease, for which she has a medical marijuana prescription from her physician, and that she would test positive for marijuana if tested. After initially assuring her a positive test result would not be a problem, ASM terminated Barbuto following her first day of work for testing positive for marijuana, explaining that the company "follow[s] federal law, not state law."

The SJC determined that ASM was required to participate in the interactive process of determining whether there was a reasonable accommodation for Barbuto's prescription marijuana use. As a basis for its decision, the court looked to the language of the Medical Marijuana Act, which provides that patients shall not be denied "any right or privilege" on the basis of their medical marijuana use. The SJC noted that a handicapped employee in Massachusetts has a statutory "right or privilege" to a reasonable accommodation under Massachusetts General Law Chapter 151B, Section 4. Where an employer's policy prohibiting the use of marijuana is applied to an employee who is being treated with marijuana for a 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."5

Further, the court held that the employer's failure to participate in the interactive process alone gave rise to a claim for disability discrimination where the employee alleged ASM could have reasonably accommodated her by waiving the no-marijuana policy. The SJC drew an analogy to a scenario where an employer had a drug policy prohibiting the use of some other medication lawfully prescribed by a physician. In that instance, the employer would still have a duty to engage in an interactive process with the employee to determine whether there were an equally effective medical alternative to the prescribed medication, the use of which would not be in violation of the employer's policy.

Per the SJC, the fact that the possession of medical marijuana is a violation of federal law is not a defense and does not make it per se unreasonable as an accommodation; the court noted that many states have enacted laws permitting the use of medical marijuana and that only the employee, not the employer, would be at risk of federal criminal prosecution.

No doubt aware that its decision would require employers to reassess their programs and policies, the court outlined potentially viable "undue hardship" defenses for employers in medical marijuana cases, offering the following examples:

  • The continued use of medical marijuana would impair the employee's performance or pose an "unacceptably significant" safety risk to the public, the employee, or other employees.
  • The continued use of medical marijuana would violate the employer's contractual or statutory obligation, such as with transportation employers subject to the United States Department of Transportation's drug testing requirements.

Implications for Employers

The SJC's decision in Barbuto has significant implications for employers with mandatory drug testing and other drug and alcohol policies. If an employee who uses medical marijuana asks an employer to waive its policy prohibiting marijuana use, the employer should at minimum engage the employee in—and document—an interactive process to determine whether a reasonable accommodation would be possible or would create an undue hardship for the employer's business.

An employer may still avoid having to provide the requested reasonable accommodation if it can prove that it would cause an undue hardship on the employer's business interests, such as interference with compliance with a statutory obligation, or if continued use would pose an "unacceptably significant" safety risk. The SJC also noted that the Medical Marijuana Act does not require any employer to permit on-site marijuana use as an accommodation to an employee.6

Although the SJC's ruling applies only to employers governed by Massachusetts law, courts in other jurisdictions with medical marijuana laws that protect employees' "rights or privileges" may look to the Barbuto decision for guidance. Maine,7 New York,8 Minnesota,9 and Rhode Island10 each have marijuana laws that protect a qualifying patient's rights or privileges. 

Beyond the marijuana issue, Barbuto makes clear that it is necessary for an employer to engage in and document an interactive process to determine whether a reasonable accommodation exists whenever an employee indicates that he or she has a disability and needs an accommodation.


1 Barbuto v. Advantage Sales and Mktg., LLC, SJC-12226, 2017 WL 3015716, at *1 (Mass. July 17, 2017).

2 2012 Mass. Acts ch. 369.

3 Id. at § 4.

4 Mass. Gen. Laws ch. 151B, § 4(16) (2016).

5 Barbuto, 2017 WL 3015716, at *7.

6 Id. at *7 n.10.

7 Me. Rev. Stat. tit. 22, § 2423-E (1) (2016).

8 N.Y. Pub. Health Law § 3369(1) (McKinney 2014).

9 Minn. Stat. §§ 152.22 et seq. (2016).

10 R.I. Gen. Laws 1952 § 21-28.6-4(a) (2017).

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions