Every year more states adopt laws permitting the use of medical marijuana. Recently the Massachusetts Supreme Court became the first court in the nation to hold that an employer cannot summarily terminate an employee for off-duty use of marijuana for medical purposes where such use is legal under state law. Given this case, and the number of states that now permit medical marijuana in varied circumstances, employers must consider modifying their policies and practices to avoid claims of disability discrimination or failure to accommodate related to the use of marijuana for medial purposes.

Recent Massachusetts Decision

In Barbuto v. Advantage Sales and Marketing, L.L.C., No. SJC-12226, 2017 WL 3015716 (Mass. July 17, 2017), the Supreme Court of Massachusetts overturned a trial court’s dismissal of an employee’s disability discrimination and failure to accommodate claim against her employer. In doing so, the Court rejected the defendant’s affirmative defense that any accommodation permitting use of a substance made illegal under federal law is “facially unreasonable.”

The plaintiff, Cristina Barbuto, alleged that her employer, Advantage Sales and Marketing, L.L.C. (“ASM”), engaged in discrimination on the basis of her disability and failed to engage in the interactive process when it terminated her for testing positive for marijuana on a drug test. Barbuto, who suffers from Crohn’s disease, asserted she had informed ASM that her physician had prescribed marijuana for medicinal purposes, that she used it in the evening only, on a sporadic basis, and that she would not use marijuana during the workday, but ASM had failed to consider whether her off-duty medical marijuana use was a reasonable accommodation. The trial court granted the defendant’s motion to dismiss Barbuto’s claims of discrimination, and Barbuto appealed.

The Massachusetts Supreme Court reversed the trial court’s order of dismissal. In so holding, it held that “an exception to an employer’s drug policy to permit [use of medical marijuana] is a facially reasonable accommodation[]” under the state’s law prohibiting disability discrimination. Id. at *5. The court noted that any other ruling would contravene the Massachusetts medical marijuana statute, which “declares that patients shall not be denied ‘any right or privilege’ on the basis of their medical marijuana use.” Id.

The Court also noted that even though possession of marijuana is a violation of federal law that does not automatically lead to the conclusion that its use as an accommodation is unreasonable. “The only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee.” Id. at *6. Because the employer is not at risk for such prosecution, it cannot claim the mere fact of the employee’s violation of federal law to be an unreasonable burden.

Moreover, the court concluded it could not declare such an accommodation to be unreasonable as a matter of public policy, solely out of respect for federal law. The court noted the consensus in place in 1970 (when marijuana was made illegal under federal law), that no medicinal use existed, has plainly changed. Indeed, nearly 90% of states have enacted laws permitting limited use of marijuana for medical purposes.

Finally, the court held its ruling did not eliminate the requirement that any accommodation avoid imposition of an undue hardship on the employer’s business. Where the employer proves the use of medicinal marijuana impairs the employee’s performance, poses a significant risk to safety, or would violate an employer’s statutory obligations, the employer may be permitted to deny the requested accommodation. For instance, the court recognized that employers subject to the Department of Transportation’s regulations requiring drug testing of safety-sensitive positions may be able to prove undue hardship would result from granting an accommodation permitting marijuana use. Even in such cases, however, an employer still would be required to engage in the interactive process to determine if any accommodation reasonably can be made.

State Trends

In the last 15 years, a majority of states have enacted laws legalizing medical use of marijuana. In fact, 29 states plus Washington D.C. have “comprehensive” laws which provide avenues for legal purchase and protect users from criminal prosecution, while 16 other states provide medicinal use in limited circumstances or as a legal defense. See National Conference of State Legislatures, State Medical Marijuana Laws (2017). Another 16 states have introduced legislation to legalize medical marijuana in 2017.

Until recently, state courts seemed reluctant to require employers to tolerate employees’ use of medical marijuana. Employees in at least three other states (California, Colorado and Washington) have brought suits similar to the case above, but their claims were denied on various grounds, often based on the limited protections found in each state’s medical marijuana statute.

Barbuto v. Advantage Sales and Marketing, L.L.C., however, may well represent a sea change in state court decisions. At least three other states, including New York, Minnesota and Maine, have language similar to the Massachusetts law, specifically providing employees may not be denied any rights based on use of medical marijuana where it is legal under state law. Significantly, however, the rationales relied upon in Barbuto are likely to be broadly applicable to claims of disability discrimination and failure to accommodate in any state which has legalized medical marijuana. Employees in states where no relevant decision has been issued will certainly point to the Barbuto decision as support for a claim that use of medical marijuana is a reasonable accommodation.

Recommendations

Given the number of states that now permit medical marijuana in varied circumstances, employers who operate in locations where marijuana use is legal should consider modifying their policies and practices to avoid claims of disability discrimination or failure to accommodate.

First, employers should give sincere consideration to whether permitting off-duty use of marijuana is a reasonable accommodation under state laws prohibiting disability discrimination. Employers also should engage in the interactive process with employees to determine if an accommodation, as requested, is reasonable. If the accommodation is determined to result in an undue burden, the employer should consider and propose alternative accommodations. This process should be judiciously documented.

Whether such an accommodation is granted, employers also must handle carefully subsequent discipline or termination of an employee who has made such a request. Any such adverse actions should be well-supported by reasons completely unrelated to the request for accommodation.

Finally, employers also should consider revising their handbooks to ensure the use of marijuana is not prohibited in all circumstances. While employers need not specify that use of medical marijuana could be an accommodation, handbook language should be crafted in a way that implicitly recognizes the possibility of medical marijuana as an accommodation.

Employers should consult with qualified legal counsel to determine the current state of their local law when engaging in the interactive process, discipline or termination related to an employee requesting an accommodation of use of medical marijuana. Employers also should seek counsel in making any necessary revisions to their employee handbook related to medical marijuana, particularly if the employer has concerns regarding safety-sensitive positions.

Additional Information

If you would like more information concerning state laws on medical marijuana use or revision of your employee handbook, please contact your Kutak Rock LLP attorney or a member of the Omaha office's Employment Litigation Practice Group.