Wednesday, July 19, 2017

The (high) times they are a changin’: medical marijuana and disability discrimination

In what is believed to be the first decision of its kind, the Massachusetts Supreme Judicial Court has allowed an employee to pursue a disability discrimination claim based on the use of medical marijuana.

Christine Barbuto suffered from Crohn’s Disease, and legally used medically prescribed marijuana in the evening to manage her symptoms. She disclosed her marijuana use to Advantage Sales & Marketing after applying for an entry-level position and being told about the pre-employment drug screen. The employer assured that her use would not be an issue. Indeed, it even permitted her to work for one day before firing her for the inevitable positive drug test. When she complained that state law permitted her off-duty marijuana use, the company told her, “We follow federal law, not state law.”

The employer must now reconsider its statement. 

In Barbuto v. Advantage Sales & Marketing, LLC [pdf], the Massachusetts Supreme Judicial Court held that Barbuto could pursue her disability discrimination claim based on her off-duty use of medical marijuana.
Where an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it. … 
Under Massachusetts law, as a result of the act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. 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.
The court further grounded its decision on the specific language of the Massachusetts medical marijuana act, which provides that patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. Because disabled employees have a statutory “right or privilege” to a reasonable accommodation, any ruling other than permitting off-duty marijuana use as a reasonable accommodation would deny that “right or privilege”.

Before you get too excited about this decision, it’s worth noting that other states have reached the opposite conclusion based on the federal illegality of marijuana, and that Barbuto appears to stand as a lone wolf on this evolving issue.

Moreover, as this decision is based on specific language in the Massachusetts marijuana law, it has zero influence on Ohio employers. Ohio’s medical marijuana law specifically permits an employer to impose a marijuana-related adverse action against an employee, prohibits an employee from suing based on a marijuana-related adverse action, and permits an employer to establish and enforce a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.

So what does Barbuto mean from a practical standpoint? For now, not much outside of Massachusetts, although it does exhibit the first crack in the hard line against employees’ use of medical marijuana. Moreover, Barbuto illustrates just how nuanced and fluid this issue is. If you operate in a state with legalized medical marijuana, it is imperative that you consult your employment counsel before taking any adverse action against an employee for a positive drug test resulting from medical marijuana. I have a feeling that as society’s feelings towards marijuana become more liberal, we will look back on Barbuto as the first domino to fall in long line of dominos protecting employees’ off-duty use.