On July 17, 2017, the Massachusetts Supreme Judicial Court issued its long awaited decision in Barbuto v. Advantage Sales and Marketing, No. SJC-12226 (2017). The Barbuto decision is significant because it is the first Massachusetts case to interpret the Massachusetts Medical Marijuana Act as it relates to employment. The Barbuto decision differs from all other courts that have considered the issue, and held that an employer has a duty to accommodate medical marijuana use under the state disability law. The Court also held, however, that the Medical Marijuana Act itself does not provide a private cause of action and that an employee alleging handicap discrimination may not pursue a wrongful termination public policy claim.
The Plaintiff, Christina Barbuto, filed suit against Advantage Sales and Joanne Villaruz, individually as the Human Resources Director of Advantage Sales, alleging handicap discrimination under the Massachusetts Anti-discrimination statute M.G.L. c. 151B; violation of the Medical Marijuana law under 105 C.M.R. 725 and Section 369 of the 2012 Acts; violation of public policy; and invasion of privacy. A Suffolk Superior Court judge granted Advantage Sales’ motion to dismiss on all counts, except the invasion of privacy count. The SJC accepted the Barbuto case on a direct interlocutory appeal.
Ms. Barbuto alleged that in the summer of 2014, she was contacted by a recruiter for Advantage Sales that expressed interest in hiring her. After an interview through Skype, Ms. Barbuto was offered a position with Advantage Sales. Ms. Barbuto accepted the offer. She was later informed that she would be required to take a drug test. Ms. Barbuto disclosed to Advantage Sales that she would test positive for marijuana due to her use of medical marijuana to treat Crohn’s disease, an enumerated debilitating condition under the Massachusetts medical marijuana law. Ms. Barbuto was prescribed medical marijuana by her physician to treat her condition and her use of medical marijuana was in compliance with Massachusetts law. Ms. Barbuto explained to Advantage Sales that she only used medical marijuana in small quantities at home two to three times per week. She told Advantage Sales that she would never use medical marijuana before work or at work. Her supervisor told her that her use of medical marijuana “should not be a problem,” and later confirmed to her that her use of medical marijuana was not an issue. Following Ms. Barbuto’s first day of employment, Joanne Villaruz contacted Ms. Barbuto and informed her that she was terminated for testing positive for marijuana. Ms. Villaruz allegedly told Ms. Barbuto that the company follows federal law, not state law.
Under M.G.L. c. 151B, §4(16), it is an unlawful employment practice to terminate or refuse to hire a “qualified handicap person” who is capable of performing the essential functions of the job with or without reasonable accommodation, unless the employer proves that the accommodation required would pose an undue hardship. The Court determined that Ms. Barbuto was a “qualified handicapped person” under M.G.L. c. 151B because she suffered from Crohn’s disease. To state a claim for handicap discrimination, Ms. Barbuto was also required to show that the accommodation requested was facially reasonable, which the Court determined it was.
The Court stated that employers with zero tolerance drug policies must “engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy.” Where no effective alternative exists, it is the employer’s burden to prove that the employee’s use of marijuana would cause an undue hardship on the employer’s business. The SJC rejected Advantage Sales’ argument that Ms. Barbuto’s request to use medical marijuana was unreasonable per se because marijuana is illegal under federal law, and therefore Advantage Sales was not required to engage in the interactive process.
The SJC noted that medical marijuana is legal under Massachusetts law, and that an exception to the employer’s drug policy is a facially reasonable accommodation where the employee’s physician has determined that marijuana is the most effective medication for the employee’s condition and any alternative would be less effective. The Court cited the Medical Marijuana Act which provides that any person that meets the requirements of the Act shall not be “denied any right or privilege” on the basis of their medical marijuana use. The Court reasoned that a handicapped employee has a statutory “right or privilege” to reasonable accommodation under M.G.L. c. 151B, §4, and if tolerance of medical marijuana use were a facially unreasonable accommodation, the employee would be denied such “right or privilege.” The Court further reasoned that the Act does not require “any accommodation of any on-site medical marijuana in any place of employment,” which implicitly recognizes that off-site medical marijuana use may be a permissible accommodation.
The Court stated that the fact that an employee’s possession of medical marijuana violates federal law does not make it a per se unreasonable accommodation. As the Court stated, “the only person at risk of federal criminal prosecution for the possession of medical marijuana is the employee.” The Court reasoned that an employer does not aid and abet possession of marijuana by allowing its off-site use. The Court noted that even if the request for accommodation were facially unreasonable, Advantage Sales owed Ms. Barbuto an obligation to engage in the interactive process. The Court went on to state that the failure to engage in the interactive process alone was sufficient to support a claim of handicap discrimination.
The SJC remanded to the Superior Court, but cautioned that Ms. Barbuto may not necessarily prevail. Advantage Sales could show that the accommodation was not reasonable because it would pose an undue hardship. For example, an employer might prove that use of marijuana would impair the employee’s work performance or create an “unacceptably significant” safety risk to the public. The Court also noted that some employers are federal government contractors or recipients of federal grants, and must comply with the Federal Drug Free Workplace Act.
With the Barbuto decision, Massachusetts employers must engage in the interactive dialogue and accommodate off-site medical marijuana use, unless the employer can show such use would create an undue hardship. The Barbuto decision is contrary to decisions in other states, including California, Colorado and Washington State. The SJC distinguished the California, Colorado and Washington decisions in a footnote. In Ross v. Raging Wire Telecom, 42 Cal. 4th 920 (2008), the California court held that the medical marijuana law did not protect users from the denial of any right or privilege. In Coats v. Dish Network, 350 P.3d 849 (Colo. 2015) and Roe v. Teletech Customer Care, 171 Wash. 2d 736 (2011), the employees did not assert handicap discrimination claims. Rather, those plaintiffs relied on allegations that their terminations violated public policy.
Employers must review their “Zero Tolerance” drug policies and amend them accordingly in light of the Barbuto decision. Off-duty medical marijuana may have to be accommodated, as long as use of medical marijuana does not cause an undue hardship for the employer. Of course, federal contractors are often required to adopt zero tolerance policies, and marijuana remains a Schedule I substance under the Controlled Substances Act. Federal guidance has clearly reiterated that medical marijuana is not excepted from the federal zero tolerance/drug testing regulations. An additional complication is that while a drug test may be positive or negative for marijuana, there is no known test to assess impairment levels. At a minimum, Massachusetts employers must assure that they engage in the interactive dialogue, required in all disability accommodation analyses, and can no longer rely simply on their zero tolerance policy when refusing to hire or terminating an employee.
If you have questions concerning the impact of the Barbuto decision upon your drug testing programs, please feel free to contact any member of our firm.
