• Written by David B. Montgomery on July 24, 2017

    Earlier this week, the Massachusetts Supreme Judicial Court ruled that an employer with a zero-tolerance policy for drug use may commit disability discrimination under that state’s anti-discrimination law if it fires an employee who tests positive for marijuana.  The plaintiff in Barbuto v. Advantage Sales & Marketing, LLC (July 17, 2017), suffered from Crohn’s Disease and IBS, and her doctor prescribed her marijuana under the state’s medical use of marijuana law.  According to Barbuto’s complaint, due to her illness, she could not maintain a healthy weight, but after using medicinal marijuana, she gained 15 pounds.  She only used medicinal marijuana in her home at night, and did not appear to work under the influence.  Advantage hired Barbuto, and a company representative informed her that she must take a mandatory drug test.  Barbuto informed her supervisor about her use medical marijuana, and the supervisor told her that should pose no problem.  Barbuto took the drug test and Advantage terminated her six days later for testing positive for marijuana.

    Barbuto sued Advantage for, among other things, disability discrimination under Massachusetts’ anti-discrimination law.  The crux of her discrimination claim was that Advantage should have accommodated her disability by allowing her to use medical marijuana while not at work.  As an initial matter, the court noted that the federal government maintains that marijuana is a Schedule I controlled substance under the Controlled Substance Act with no accepted medical uses and possession of marijuana is a federal crime.  However, the court also observed that ninety percent of states, including Massachusetts, now allow the medical use of marijuana.

    Advantage moved to dismiss the complaint because (1) the accommodation requested by Barbuto is unreasonable because it is a federal crime and (2) Advantage terminated Barbuto for failing to pass a drug test that all employees must pass, not because of her alleged disability.  The court began with the premise that “where an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it.”

    Advantage’s fist argument failed because, according to the court, it is of no consequence that Barbuto’s proposed accommodation is illegal under federal law.  The person at risk of prosecution for a crime is Barbuto, not Advantage.  Further, the court reasoned that to declare the use of medical marijuana a per se unreasonable accommodation would be an affront to the voters and legislators of Massachusetts who recognized that marijuana has medicinal utility.  Moreover, even if Barbuto’s accommodation request to use marijuana were unreasonable, Advantage still had a duty to explore with Barbuto whether alternative methods existed to accommodate her disability.  Advantage did not engage in this interactive process.

    Advantage’s contention that it terminated Barbuto because she failed the drug test, and not because her disability, also failed.  An employer is not insulated from discrimination because its policy resulted in a person being terminated.  Because Advantage’s policy prohibiting the use of marijuana was employed against Barbuto–a disabled employee being treated by a physician with marijuana– terminating Barbuto denied her the right to a reasonable accommodation in violation of Massachusetts’ anti-discrimination law.

    The court noted that many employers could show that accommodating an employee by allowing her to use medical marijuana would be an undue hardship.  For example, employers who are federal contractors must comply with the Drug Free Workplace Act that requires them to take steps to maintain a drug-free workplace.  Also, transportation employers must comply with regulations that require drug testing of safety-sensitive employees.

    The Barbuto decision is noteworthy because under the Americans with Disabilities Act, an employee who uses illegal drugs outside of work is not considered a qualified individual with a disability.  Further, the few state courts that have addressed this issue have ruled largely in favor of employers.

    The key takeaway from Barbuto is that employers must consider the requirements of their state anti-discrimination and medical marijuana laws when confronted with an employee who requests an accommodation to use medical marijuana.  The medical marijuana laws in some states prohibit employers from taking adverse employment actions against employees solely because of their status as a person qualified to take medical marijuana.  Many state laws declare that implementation of zero-tolerance policies does not violate state law.  Employers should contact counsel prior to taking action in situations like this.

    This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and the reader is urged to consult a lawyer concerning his/her own situation and any specific legal questions he/she may have.