If there was any doubt that employers need to be careful about disciplining employees who use medical marijuana, it was ended today by the Supreme Judicial Court (SJC). It held that employees who are prescribed medical marijuana to treat their health conditions are protected under Massachusetts handicap law. Both employers and managers involved in decisions to punish workers for off-site medical marijuana use can be sued for damages caused by their conduct, the SJC held.
The case’s significance is patent. Under both Massachusetts and federal law, handicapped employees are protected against discrimination. If they can perform their jobs with or without reasonable accommodation, employers cannot take adverse action against them due to their disabilities. Massachusetts places a heavy burden on employers to consider accommodations their employees may need to continue working and to implement them if reasonable. Employers must both engage in an interactive discussion to evaluate potential accommodations and implement any that may exist unless they prove that doing so would pose an undue hardship. Proving undue hardship is quite difficult.
But state and federal laws diverge when it comes to marijuana use. In Massachusetts, such use is legal when medically prescribed. The drug can be sold in the Commonwealth, was long ago decriminalized, and is now wholly legal for personal use. At the federal level, none of this is true. Despite broad agreement among states that marijuana has valid medical uses that should be permitted under proper supervision, U.S. law continues to provide otherwise. It was on this basis that the employer in Barbuto v. Advantage Sales and Marketing, LLC believed it could summarily terminate its employee for a positive marijuana test.
The SJC found otherwise. It instructed employers to treat marijuana use in the same fashion as any other drug prescribed for an employee’s health. Employers cannot discrimination against employees who use medical marijuana outside the workplace and must engage in the same interactive accommodation process they would for any disabled employee who might require workplace adjustments in order to continue to work.
The Barbuto case pitted a woman hired as a sales representative to work at a customer site. Prior to commencing work, she was required to undergo drug testing. She informed her new employer she used marijuana to treat Crohn’s Disease and so would test positive for the drug. The employee’s use was limited – two or three times weekly, during the evening, to help with her appetite and struggles to keep weight on. Though the employer initially told her the drug’s use would not pose a problem, it later fired her following her first day of work due to a positive marijuana test. Her handicap discrimination suit was dismissed by a superior court judge.
Though the plaintiff can now proceed with her claim, the case is by no means over. “The defendants at summary judgment or trial may offer evidence to meet their burden to show that the plaintiff’s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the defendants’ business….For instance, an employer might prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees,” the SJC wrote. Depending on the nature of an employer’s business and the particular circumstances, a variety of other factors might also be relevant at trial.
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