07-26-2017
Many states permit doctors to prescribe marijuana for use to treat ailments. Massachusetts is one of those states. The Massachusetts Supreme Court has held that employers must accommodate medical marijuana use like any other disability.
Christian Barbuto was prescribed marijuana to help treat her Crohn’s disease. Upon her hire at Advantage Sales and Marketing, she disclosed her medical marijuana use, letting them know that she did not use it on a daily basis and would not use it before and during work. As expected, Advantage’s required drug test showed the marijuana. She was fired. The company asserted that it followed federal law, not state law. She sued under Massachusetts’ anti-discrimination law and Medical Marijuana Act.
In upholding her claim, the Mass. Supreme Court noted that she had alleged a disability (Crohn’s disease); experienced an adverse employment act (termination); and was able to perform the essential functions of her position with accommodation (waiver of policy requiring termination for failing drug test). Ms. Barbuto’s medical marijuana use was legal under state law, which provided that patients may not be denied “any right or privilege on the basis of their medical marijuana use.” Reasonable accommodation was found to be one such “right or privilege.” Federal law prohibits the use of any marijuana for any reason. However, the Mass. Supreme Court held that Ms. Barbuto’s “possession of medical marijuana in violation of Federal law does not make it per se unreasonable as an accommodation.” Advantage was required to engage in the interactive process to determine whether an accommodation was possible. The “undue hardship” defense would be available to employers where the marijuana use would impair performance, or pose a significant safety risk, or violate an employer’s contractual or statutory obligation.