Handicap Discrimination Claim Based on Medical Marijuana Accommodation Revived in Barbuto v. Advantage Sales

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Massachusetts employers can not refuse to accommodate handicapped employees who are lawfully prescribed medical marijuana to treat or alleviate a medical condition. Stated differently, continued use of medical marijuana as a reasonable accommodation request is not facially unreasonable. In Barbuto v. Advantage Sales, the Massachusetts Supreme Judicial Court (SJC) reversed the Superior Court’s decision granting summary judgment to the employer and reinstated the employee’s handicap discrimination claim under the Fair Employment Practices Act (M.G.L. c. 151B, §4). There, the plaintiff, Cristina Barbuto, receive a valid prescription for medical marijuana to treat the debilitating symptoms caused by Crohn’s disease. According to the decision, due to this medical condition, Ms. Barbuto has little or no appetite, finds it difficult to maintain a healthy weight, and typically uses marijuana for medicinal purposes in small quantities two or three times per week. The record also makes clear that Ms. Barbuto did not use marijuana daily, nor would she consume it before or during work.

Ms. Barbuto’s employer, Advantage Sales & Marketing, required her to submit a urine sample as part of the hiring process. After learning of this requirement, Ms. Barbuto was up front with her future supervisor about her diagnosis of Crohn’s disease and her medical marijuana use. The decision further reports that her future supervisor responded that this “should not be a problem,” which he later confirmed with others at the company. After completing her first day of work, Ms. Barbuto received a call from a human resources representative, who informed her that she was terminated for testing positive for marijuana. In doing so, Ms. Barbuto was allegedly told that the company did not care if she used marijuana to treat her medical condition because “we follow federal law, not state law.”

Under Massachusetts law and consistent with the MCAD Handicap Discrimination Guidelines, an employer must provide a qualified handicapped employee with a reasonable accommodation provided that the accommodation does not pose an undue hardship to the company. In finding that Ms. Barbuto was handicapped, the SJC looked to the Massachusetts Humanitarian Medical Use of Marijuana Act (M.G.L. c. 369), which was passed in 2012 to allow health care professionals to prescribe medical marijuana for the treatment of certain “debilitating medical conditions” — defined under the Act (M.G.L. c. 369, §2C) to include Crohn’s disease. In arguing for dismissal, however, the defendant contended that the plaintiff’s reasonable accommodation (i.e., the continued use of medical marijuana) was unreasonable because it is a federal crime. The company also argued that, even if the plaintiff is a qualified handicapped person, she was terminated because she failed a drug test required of all employees and not because of her handicap.

In dispensing with the first argument, the SJC observed that, notwithstanding the company’s policy prohibiting marijuana use, an employer must nevertheless engage in a open dialogue known as the interactive process to determine whether medical alternatives exist. In doing so, the Court relied on well-established precedent in Godfrey v. Globe Newspaper, holding that “[i]f the accommodation proposed by the employee appears unduly onerous, the employer has an obligation to work with the employee to determine whether another accommodation is possible.” Furthermore, consistent with the analysis in Cox v. New England Telephone & Telegraph, the SJC further noted that, if no alternative exists, “the burden of proving an inability to accommodate always rests with the employer.”

Returning to the facts of Barbuto, the SJC rejected the employer’s argument that the plaintiff’s request was per se unreasonable solely because federal law prohibits marijuana possession, noting that nearly 90% of all states (as well as Puerto Rico and the District of Columbia) permit the use of marijuana for medical reasons. Of particular relevance to the Court in this respect was the lack of legal consequences to the employer under federal law:

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. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.

The SJC also easily disposed of the employer’s second argument by confronting the obvious: it was the company’s policy that resulted in the plaintiff’s termination because of her handicap. The Court further observed that allowing an employer to avoid liability by simply relying on a company policy to deny an accommodation would eviscerate the duty to accommodate virtually every handicapped employee. As an example, the SJC recognized that, under the defendant’s logic, “a company that barred the use of insulin by its employees in accordance with a company policy would not be discriminating against diabetics because of their handicap, but would simply be implementing a company policy prohibiting the use of a medication.”

Overall, the Barbuto decision is a reminder of an employer’s duty to participate in the interactive process and accommodate a qualified handicapped employee unless a showing of undue hardship is made. Regarding the latter, the SJC noted an employee’s use of medical marijuana may certainly result in an undue hardship to certain employers; namely, those in the transportation industry who must comply with federal regulations promulgated by the United States Department of Transportation. A showing of undue hardship, however, is often only possible where the employer has engaged in the interactive process. Indeed, as the SJC cautioned in MBTA v. MCAD & David Marquez, demonstrating that all conceivable accommodations would pose an undue hardship “will often be difficult to make without the employer’s having engaged in an interactive process with the employee and having made a good faith effort to explore the options” through the interactive process.

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