Currently, 10 states have laws that explicitly protect employees from the use of medical marijuana
Prior to a recent ruling in Barbuto v. Advantage Sales and Marketing, employers in states without laws explicitly prohibiting employers from terminating or otherwise penalizing employees for using medical marijuana could refuse to accommodate an employee’s use of medical marijuana. Until this Massachusetts Supreme Judicial Court (SJC) decision, state courts have consistently held that employers have no affirmative duty to accommodate employees who use medical marijuana.
In this case, Ms. Barbuto applied for, and was offered, a position with Advantage Sales and Marketing. She was informed that the offer required a drug test which Ms. Barbuto agreed to but explained that she would test position for marijuana. Pursuant to Massachusetts law, she used medical marijuana under a prescription to manage her Crohn’s disease. As forewarned, she tested positive and was fired for violating the company drug-free workplace policy. Ms. Barbuto sued for handicap disability in violation of Massachusetts’ anti-discrimination law citing the company’s failure to accommodate her use of medical marijuana.
First the Massachusetts Superior Court dismissed the complaint for failure to state a claim for disability discrimination under the state law; however, the SJC reversed that decision. The higher court ruled “that employers cannot escape their affirmative duty to engage in the interactive process with an employee who is prescribed medical marijuana just because the employer has a drug-free workplace policy and federal law prohibits the use of medical marijuana.” The court also noted that Massachusetts voters and its legislature enacted the medical marijuana law protecting its use and therefore, employers must treat its use the same as it would other lawfully prescribed medication. Massachusetts employers must, at a minimum, engage in the interactive process to explore accommodations that would enable to employee to do his or her job. In addition, the SJC 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.
Even though the Barbuto case applies only to Massachusetts, it is a landmark decision that is likely to influence other states. Twenty-nine states have legalized medical marijuana, of which the following 10 have provisions that protect employees from the use of medical marijuana: Arizona, Arkansas, Connecticut, Delaware, Illinois, Nevada, New York, Ohio, Rhode Island and West Virginia.
Being cognizant of this decision and the fact that other states are passing similar medical marijuana laws, employers may want to reassess their mandatory drug testing programs and other drug and alcohol policies.