In Barbuto v. Advantage Sales and Marketing, the Supreme Judicial Court recently blazed a trail as the first state high court to extend state employment protections to medical marijuana users where those protections were not explicitly spelled out in the medical marijuana statute. The SJC unanimously gave the green light to discrimination claims by those who use medical marijuana under state law but then are punished by employers. There are limits to the court’s holding; for instance, the medical marijuana statute specifies that employers do not need to accommodate on-site use of marijuana, and an employer can still take adverse actions by meeting the high burden of showing an “undue hardship” for tolerating off-site marijuana use. But many patients who consume marijuana to treat debilitating medical conditions like cancer or, like the plaintiff Barbuto, Crohn’s disease, will get some relief by not having to choose between effective treatment and keeping their jobs.
In Barbuto, the plaintiff was hired subject to a drug test and started working. She informed her employer that she would test positive for marijuana because she used it for medical purposes according to state law because she suffered from Crohn’s disease. The hiring manager told her that would not be a problem, but after the test came back positive, she was fired by a manager who told her “we follow federal law, not state law.” (Any use or possession of marijuana remains illegal under federal law, although for several years Congress has prohibited federal authorities from spending money to interfere with state medical marijuana laws.) The plaintiff brought suit claiming, among other things, disability discrimination, and the lower court dismissed her case.
At oral argument, several Justices compared marijuana to the opiates that are currently causing a public health crisis in the Commonwealth and around the country. One of the aims of the Massachusetts medical marijuana law is to provide an alternative to these opiates, but if the court had ruled the other way, a cancer patient taking fentanyl would have to be accommodated but one taking marijuana would not. The SJC passed on this scenario and declined to allow employers to intrude into the medical treatment decisions of employees.
The employer argued that it terminated Barbuto not because she consumed marijuana but because she failed the drug test that all employees are required to take. The SJC held that this approach was nothing but smoke and mirrors, since employers may have to adjust tests or requirements in order to accommodate an employee’s disability. Just as an employer cannot ban insulin without being accused of discriminating against diabetics, a blanket rule against marijuana use must, in some circumstances, give way. The employer also suggested that it could face federal penalties related to marijuana, but the SJC disagreed that the employer could be considered a joint possessor of marijuana that an employee consumed off site.
The court’s holding is consistent with many of the arguments I raised in an amicus brief authored with Chetan Tiwari on behalf of the Massachusetts Employment Lawyers Association, the American Civil Liberties Union of Massachusetts, GLBTQ Legal Advocates & Defenders, Mental Health Legal Advisors Committee, Union of Minority Neighborhoods, Jewish Alliance for Law and Social Action, and Health Law Advocates. The medical marijuana law provides that medical marijuana users who comply with the law shall not be “penalized under Massachusetts law in any manner, or denied any right or privilege” because of their marijuana use. Accordingly, we argued that marijuana should be treated just like any other medical treatment for purposes of state law, and the SJC agreed. Thus, an employee who takes marijuana to treat a serious medical condition that limits his or her life activities is considered “handicapped” under state law, and if he or she can perform the basic responsibilities of his or her job, the employer must make “reasonable accommodations” that may include off-site use of marijuana. The employer must engage in an interactive process to hash out possible arrangements with the employee, but cannot dismiss the possibility out of hand as happened in this case.
The SJC did weed out claims that the medical marijuana law itself or public policy supporting medical marijuana could be enforced by employees in a lawsuit, ruling that its holding on handicap discrimination under Chapter 151B adequately protected the rights of medical marijuana patients in the employment context. However, if there is a gap where Chapter 151B does not apply, the SJC did not entirely rule out the possibility that one of these avenues could still provide relief.
In this decision, the SJC demonstrated that it is not afraid to buck national trends and stand up for the rights of employees to be free of discrimination. We welcome the ruling and hope that it provides some relief to the many Massachusetts patients who have taken advantage of the state law.