MA Employers Beware: Employees Have a Right to Use Medical Marijuana

In a recent decision, the Massachusetts Supreme Judicial Court has made it clear that employers cannot take action against employees who lawfully use medical marijuana, as doing so is tantamount to denying a request for a reasonable accommodation under the Commonwealth’s disability discrimination laws.

In Barbuto v. Advantage Sales and Marketing, LLC, the SJC reversed the dismissal of an employee’s handicap discrimination claim, alleging that her employer terminated her because of her lawful medical use of marijuana, and failed to engage in an interactive process to discuss a reasonable accommodation of her handicap. The employee had failed her employer’s drug test because of her use of marijuana, which was prescribed to treat her Crohn’s disease.

Interestingly, the SJC rejected the employer’s defense that the use of medical marijuana in the workplace is not a facially unreasonable accommodation simply because such use still is a crime under federal law. To the contrary, the SJC ruled that, under Massachusetts law, no person shall be denied “any right or privilege” on the basis of her medical marijuana use, even if such use may constitute a federal crime.

Thus, for an employee who has a qualified handicap under the disability discrimination laws, the employer has an obligation to engage in an interactive process to determine whether the requested accommodation – in this case, use of marijuana pursuant to a prescription – is reasonable. Under well-established law, if the employee makes at least a facial showing that a reasonable accommodation is possible, then the employer bears the burden of proving that the use of the “medication” would cause an undue hardship to the employer’s business. Notwithstanding that general ruling, employers can take some solace in the fact that the SJC noted that Massachusetts law does not require employers to allow the use of medical marijuana on the workplace premises in order for them to satisfy their legal obligations.

What does this mean for Massachusetts employers? They should:

  • Review existing drug-testing and anti-drug policies to ensure that they have taken into consideration use of medical marijuana
  • Train managers and supervisors on their obligations when faced with notification that an employee is lawfully using medical marijuana
  • Consider each employee’s individual circumstances in determining whether to enforce a policy that prohibits use of certain drugs or medications
  • Treat employees who have a need for medical marijuana in the same manner as any employee who claims to have a mental or physical disability

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