Massachusetts: Medical Marijuana As A Reasonable Accommodation In The Workplace

As our readers know, we have been monitoring decisions regarding the ability of employers to take disciplinary action against employees for using marijuana at work (like this decision here). The most recent high court to weigh in on this topic is the Massachusetts Supreme Judicial Court, which looked at whether an employer may violate that state's anti-discrimination law when it fires an employee because of a failed drug test based on the employee's use of medical marijuana. The Court concluded that employers must accommodate medical marijuana users in the normal course under these circumstances to avoid a violation of that law. We discuss this important new decision - Barbuto v. Advantage Sales and Marketing, LLC - below.

AS&M Fires a New Hire After She Tests Positive For Marijuana - a Drug She Was Legally Prescribed to Ingest During Non-Working Hours

Advantage Sales and Marketing ("AS&M") drug tests its employees, including for marijuana. Ms. Barbuto, a recent hire, notified AS&M that it should expect her to fail that drug test because she uses legally prescribed medical marijuana to treat her Crohn's disease. More specifically, Ms. Barbuto notified AS&M that she used medical marijuana, that she had a certificate for medical marijuana, and that she did not use medical marijuana during work or before work (i.e., she used it only off-hours and after work). To no one's surprise then, she failed the drug test, and AS&M decided to fire her consistent with its drug testing policy. She sued alleging multiple claims, including disability discrimination under Massachusetts' anti-discrimination law.

The Court Says AS&M May Have Violated Massachusetts Anti-Discrimination Law By Firing Her Instead of Excluding Marijuana From the Drug Test as a Reasonable Accommodation

The question before the Court was whether AS&M should have accommodated Ms. Barbuto's use of medical marijuana when administering its drug test. The Court said yes.

It found her to be a "handicapped person" under the law because Crohn's disease limited her ability to perform her job, and AS&M thus had an obligation to engage in an interactive process to determine whether her proposed accommodation - a waiver of a prohibition against a positive drug test for marijuana use - constituted a reasonable accommodation that allowed her to perform the essential functions of her job.

The Court noted that, as with the use of any properly prescribed medication, the use of lawfully prescribed...