In accordance with a recent Supreme Judicial Court’s ruling in Barbuto v. Advantage Sales & Marketing LLC, employers are at risk for disability discrimination claims for denying the use of marijuana as a reasonable accommodation.  In Barbuto, the plaintiff received a valid prescription for medical marijuana to treat the side effects of Crohn’s disease. During the hiring process, the employer required the employee to submit to a drug test. Prior to submitting to the drug test, the plaintiff informed her employer about her use of medical marijuana.  After the test came back positive for marijuana, the employer terminated the Plaintiff after completing her first day at work. The plaintiff asserted claims for handicap discrimination under the Massachusetts Fair Employment and Practices Act.

The trial court granted the employer’s motion to dismiss.  The plaintiff appealed, and the SJC granted the plaintiff-employee’s application for direct appellate review.  The SJC first examined the Massachusetts Medical Marijuana Act which defines a “qualifying patient” as “a person who has been diagnosed by a licensed physician as having a debilitating condition.” The law expressly lists Crohn’s disease as a debilitating condition.  However, marijuana continues to be considered a controlled substance under the Federal Controlled Substance Act. Therefore, a “qualifying patient” under the under the Massachusetts law may still be subjected to federal criminal prosecution for possession of marijuana.

Under G.L.c. 151B, §4 (16), it is an “unlawful practice . . . [f]or any employer . . . to dismiss from employment or refuse to hire . . . , because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.”  To assert a claim for handicap discrimination, the plaintiff must first show that she is a “qualified handicapped person” who was terminated because of her handicap. The court in Barbuto concluded that the plaintiff was a “handicapped person” as defined in §1(19) because she had a physical impairment that substantially limited one or more major life activities.  The court noted that Crohn’s disease affected the plaintiff’s ability to work, which is a major life activity.

Next, the court assessed the reasonableness of the requested accommodation.  The court rejected the Defendant’s argument that the use of medical marijuana was facially unreasonable because it was a federal crime. The court noted that even if the company had a policy prohibiting the use of the medication, the company still has the responsibility of engaging in an interactive process with the employee to determine if there are any other alternatives to the medicine that would not violate their policy.  If there is no adequate alternative, the burden is on the employer to demonstrate that the employee’s use of marijuana would create an undue burden on the employer’s business. In regards to conflicting federal law, the court noted that the only person at risk for federal prosecution for the possession of marijuana would be the employee.

The court also rejected the Defendant’s argument that the plaintiff was terminated because she failed the required drug test and not because of her handicap.  The court stated in pertinent part: “by the defendant’s logic, a company that barred the use of insulin by its employees in accordance with a company policy would not be discriminating against diabetics because of their handicap, but would simply be implementing a company policy prohibiting the use of a medication.” The court concluded that the termination of the plaintiff for violating the company’s marijuana prohibition policy effectively denied the plaintiff the opportunity of reasonable accommodation.

Nonetheless, the court stressed that its decision was limited to reversing an Order dismissing the handicap discrimination claims, and that the reversal did not mean that the plaintiff would prevail in proving handicap discrimination.  The court noted that the employer may be able to demonstrate at summary judgment or at trial that the employee’s continued use of medical marijuana is not a reasonable accommodation because it would impair her performance or pose an “unacceptable significant” safety risk to the public and her fellow employees.  The employer may also be able to establish that marijuana use is not a reasonable accommodation because it would impose an undue hardship on the employer’s business or would require the employer to violate a local or federal rule, regulation or statute.  Whether the employer met its burden of proving that the requested accommodation would impose a hardship on the employer’s business is an issue that will be resolved at summary judgment, or more likely, at trial.