Beginning when the first states legalized use of marijuana for medical or recreational purposes, employers began speculating whether legislatures and courts in those states would continue to permit employers to exclude persons from employment who test positive for marijuana use. For years, these states have refused to restrict employers from establishing rules prohibiting them from taking adverse action against applicants and employees who test positive for marijuana, even in the absence of evidence of use or intoxication while at work.
Last Monday, the Massachusetts Supreme Court made that state the first in the U.S. to extend limited employment protections to legal users of medical marijuana. The state legalized medical use of marijuana in 2012 following a voter initiative. In Barbuto v. Advantage Sales and Marketing, LLC, the plaintiff suffers from Crohn’s disease. When asked to take a pre-employment drug test, she provided the defendant with written certification from her physician that she has been authorized for marijuana use to treat the condition. She stated that she would not use marijuana before or while at work.
Despite this information, the defendant revoked her offer of employment, stating that the company follows federal and not state law with respect to marijuana use. The plaintiff filed an administrative charge of disability discrimination with the Massachusetts state employment discrimination agency and later filed suit, alleging wrong discharge and violation of the state medical marijuana act in addition to the disability discrimination claim. The trial court granted the employer’s motion to dismiss the claims relating to marijuana use.
On appeal, the Massachusetts Supreme Court reversed dismissal of the disability discrimination claim. The court rejected the employer’s argument that it did not have to provide a disability-related accommodation that violates federal law. It concluded that the state medical marijuana and disability discrimination laws require employers to consider accommodations relating to marijuana used to treat a medical disability. The plaintiff did not request the ability to use marijuana before or while at work, and therefore did not subject the employer to risk of federal prosecution.
The court noted that accommodation of medical marijuana use would present an undue hardship to the employer if the position involves work regulated by federal law, such as Department of Transportation drivers, or companies subject to the federal Drug Free Workplace Act. The opinion did not specifically address whether accommodation for employees in safety-sensitive positions would create a similar hardship. The court did affirm dismissal of the plaintiff’s claims under the medical marijuana law, as well as public policy wrongful discharge, finding no separate causes of action under Massachusetts law beyond the disability discrimination statute.
Of course, this decision has no direct application outside of Massachusetts. However, it is likely to be cited by employees in other states who seek similar exemptions from employer-sponsored drug tests as a form of reasonable accommodation for medically disabling conditions. Employers in states that have legalized medical marijuana may decide to voluntarily amend their drug policies to permit such off-duty use in appropriate circumstances.