A new reasonable accommodation case from the state's top court

A new case out of the Massachusetts Supreme Judicial Court (SJC), the state's highest court, looks at whether a woman who had a valid prescription for medical marijuana, but failed her employer's drug test due to it and was fired as a result, could sustain a claim for disability discrimination. The SJC held she could.

As explained by the SJC:

[T]he plaintiff, Cristina Barbuto, was offered an entry-level position with defendant Advantage Sales and Marketing (ASM) in the late summer of 2014, and accepted the offer. An ASM representative later left a message for Barbuto stating that she was required to take a mandatory drug test. Barbuto told the ASM employee who would be her supervisor that she would test positive for marijuana. Barbuto explained that she suffers from Crohn's disease, a debilitating gastrointestinal condition; that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes; and that, as a result, she was a qualifying medical marijuana patient under Massachusetts law. She added that she did not use marijuana daily and would not consume it before work or at work. Typically, Barbuto uses marijuana in small quantities at her home, usually in the evening, two or three times per week.

Barbuto submitted to the required urine drug test and started work. The evening of her first work day, a human resource representative called her and told her she was terminated due to her urine testing positive for marijuana.

Barbuto sued, alleging a number of claims, including disability discrimination and invasion of privacy. The employer moved to dismiss her case at the trial-level court, the Superior Court. The Superior Court judge allowed the employer's motion to dismiss the case on all claims except the invasion of privacy claim. On that claim, the Superior Court judge concluded that to justify a urine test, there needed to be a showing that plaintiff's particular job included possibly dangerous or safety-sensitive responsibilities. No such nexus had been demonstrated here as to Barbuto's position, an entry level role with a sales and marketing company.

Barbuto appealed the dismissal of the other claims, including the handicap discrimination claim, to the SJC. She alleged that she was handicapped due to her Crohn's disease but nonetheless able to perform the essential functions of her job with a reasonable accommodation for her handicap. The reasonable accommodation she was seeking was a waiver of the employer's policy terminating anyone who tests positive for marijuana so that she could continue to work there and use medical marijuana outside of work under her doctor's prescription.

At the SJC, the employer argued that the employee's accommodation was facially unreasonable given that, while her medical marijuana was legal under state law, it was nonetheless illegal under Federal law.

The court dismissed that argument, holding:

Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under G. L. c. 151B, § 4 (16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.

The Court noted that the law legalizing medical marijuana specifically does not require "any accommodation of any on-site medical use of marijuana in any place of employment," thus implicitly recognizing that off-site medical use of marijuana might be a permissible "accommodation."

The Court further noted that the "fact that the employee's possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation. The only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee." The employer would not be.

Additionally, the Court noted that:

even if the accommodation of the use of medical marijuana were facially unreasonable (which it is not), the employer here still owed the plaintiff an obligation under G. L. c. 151B, § 4 (16), before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use that was not prohibited by the employer's drug policy. This failure to explore a reasonable accommodation alone is sufficient to support a claim of handicap discrimination provided the plaintiff proves that a reasonable accommodation existed that would have enabled her to be a "qualified handicapped person.

Specific to the fact that the Company seemed to have a blanket policy terminating anyone for using marijuana without engaging in the required interactive process to determine the possibility of a reasonable accommodation, the Court noted:

Where, as here, the company's policy prohibiting any use of marijuana is applied against a handicapped employee who is being treated with marijuana by a licensed physician for her medical condition, the termination of the employee for violating that policy effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination.

The SJC thus reversed the lower Court's dismissal of the case. It noted, however, that the matter was still at a preliminary stage. It would hypothetically still be possible for an employer to show that the employee's proposed accommodation presented an undue burden on the employer such that the medical marijuana impaired the employee's work performance or posed an "unacceptably significant" safety risk to the public, the employee, or her fellow employees.

Like most employment law cases, small changes in facts and circumstances can change the outcome so it's important to take a deep dive into all relevant aspects of a matter.

Doorways Employment Law specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on disability and reasonable accommodation issues. Contact Doorways Employment Law for an employment law consultation.