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07.20.2017 | Legal Advisory

In Barbuto v. Advantage Sales and Marketing, LLC, the Supreme Judicial Court of Massachusetts ruled that an employer could be sued for handicap discrimination under state law for firing an employee who tested positive for marijuana in a pre-employment drug test, where the employee had been prescribed marijuana by her physician to treat a disabling condition. The case required the court to address a conflict between federal law and state law: although Massachusetts and most other states now permit the use of  marijuana for medically prescribed purposes, the use of marijuana for any purpose is still prohibited by federal law.

At a minimum, the Barbuto decision means that Massachusetts employers cannot just automatically terminate or refuse to hire based upon a positive test for marijuana without engaging in some further inquiry.

Background

Christina Barbuto, the plaintiff, suffers from Crohn’s disease for which she was prescribed medical marijuana by her doctor to alleviate the symptoms. The occasional use of marijuana, apparently, increases her appetite which allows her to maintain a healthy body weight.

In the late summer of 2014, Barbuto applied for and was offered an entry-level position with Advantage Sales and Marketing, conditioned upon the results of a pre-employment drug test. Barbuto told her future supervisor at Advantage that she would probably test positive for marijuana given her prescribed medical usage. She made clear that she would never use marijuana during the work day, or report to work under its influence. The supervisor said it “should not be a problem,” but that he would confirm it with the company.

On September 5, 2014 Barbuto submitted a urine sample for her drug test. On September 11, Barbuto went to an Advantage training program where she was given a work assignment and a uniform.  She completed her first day of work on September 12. That evening, however, an Advantage human resources representative told Barbuto that she was terminated for having tested positive for marijuana use in her pre-employment drug test. According to the court, the HR representative told Barbuto that Advantage “did not care if Barbuto used marijuana to treat her medical condition because ‘we follow federal law, not state law.’”

The Lawsuit

Barbuto filed suit against Advantage in state court claiming, among other things, that Advantage had violated the Massachusetts statute prohibiting handicap discrimination in employment. Under the statute, an employer must afford a “reasonable accommodation” to a handicapped employee if necessary to permit the employee to perform the essential functions of his or her job. An employer is expected to engage in an “interactive dialogue” with a handicapped employee to determine what accommodations may be needed or possible. An employer need not provide an accommodation that would impose an “undue hardship” on the employer.

The Supreme Judicial Court found, at the outset, that Barbuto was a handicapped person protected by the statute as a result of her Crohn’s disease. Advantage argued, however, that permitting her to use medical marijuana outside of the workplace could not be a “reasonable” accommodation because the use would violate U.S. drug laws. The court rejected that argument, citing the language of the Massachusetts medical marijuana law, “which declares that patients shall not be denied ‘any right or privilege’ on the basis of their medical marijuana use.” The court stated that a handicapped employee cannot be denied the “right or privilege” of a reasonable accommodation based solely upon the employee’s use of medical marijuana, regardless of federal law. The court also pointed out that Advantage never engaged in an interactive dialogue with Barbuto to determine whether any other accommodations might be possible.

The analysis does not end there, however. The Supreme Judicial Court returned the case to a lower court for further proceedings to determine whether Barbuto’s use of medical marijuana would impose an undue hardship on Advantage. For example, the court suggested an employer might be able to prove that an employee’s use of medical marijuana would “impair the employee’s performance or pose an ‘unacceptably significant’ safety risk.” Alternatively, the court stated, an employer might make out a case for undue hardship by proving that an employee’s use of medical marijuana would violate the employer’s statutory or contractual obligations. This would be particularly relevant for employers in the transportation industry or employers with federal-government contracts.

Impact on Employers

If there’s one lesson from the Barbuto decision for Massachusetts employers who utilize a drug-testing regimen, it’s that a positive result for marijuana cannot automatically trigger termination or a refusal to hire. The employer must first determine whether the employee or applicant has a medical prescription and, if so, whether there are any alternative accommodations possible. If no other accommodations are viable, the employer must then determine whether employing the individual in question would cause the employer to be in violation of contractual or statutory obligations. If the employment would not give rise to a contractual or statutory violation, or would not otherwise create an undue hardship for the employer, then termination or refusal to hire would likely constitute unlawful handicap discrimination under Massachusetts law.

This advisory was prepared by David S. Rubin, a member of Nutter's Labor, Employment and Benefits Department. For more information, please contact David or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.