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Fired medical marijuana user can sue Massachusetts employer for disability discrimination

July 18th, 2017  |  Joy Waltemath

By Joy P. Waltemath, J.D.

Massachusetts employees who are “qualified handicapped persons” under the state’s disability discrimination law and who legally consume marijuana under the state’s medical marijuana act may now bring a claim against an employer that denies them “the right or privilege” of a reasonable accommodation for their disability. The Massachusetts Supreme Court ruled July 17th that an employee who suffered from Crohn’s disease, a debilitating medical condition for which she had been allowed to use medical marijuana under Massachusetts law, and who was fired under her employer’s policy after she tested positive for marijuana, could maintain a lawsuit against her employer.

Significantly, the fact that possession of medical marijuana violates federal law does not make its use per se unreasonable as an accommodation, reasoned the court, because the risk of federal prosecution belongs to the employee, not the employer. Nor would the court “disrespect” the view of the majority of state legislatures and voters that marijuana has an accepted medical use—contrary to the federal government’s continuing classification of it as a Schedule 1 drug, one that has “no acceptable medical uses.”

Fired after drug test. After being offered an entry-level position with a sales and marketing firm, the employee was required to be drug-tested. She informed her supervisor that she would test positive for marijuana, explaining that she had Crohn’s disease, a debilitating gastrointestinal condition, for which her physician had ordered that she be allowed to use marijuana for medicinal purposes under Massachusetts law. She also said she did not use marijuana daily and would not consume it before work or at work. Although her supervisor allegedly confirmed that her lawful medical use of marijuana “would not be an issue,” after the employee completed a day of training and her first day on the job, the employer’s HR director fired her for testing positive for marijuana, saying “we follow federal law, not state law.”

Massachusetts medical marijuana law. Critical to the state high court’s decision was language in Chapter 369, Section 4 of the state law authorizing medical marijuana, which says: “Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” The law also specifically does not require “any accommodation of any on-site medical use of marijuana in any place of employment” (emphasis added).

Disability discrimination. The employee claimed she was a “handicapped person” under state disability bias law because of her Crohn’s disease (it was a debilitating medical condition under the medical marijuana law) and that she was “qualified” because she could perform her job’s essential functions with a reasonable accommodation—a waiver of the employer’s policy, which precluded employing anyone who tested positive for marijuana.

Unreasonable accommodation? Because she was being treated with marijuana, which is illegal under federal law, the employer argued that an accommodation to permit the employee to continue medical marijuana treatment “is per se unreasonable.” Plus, because that accommodation would be facially unreasonable, the employer said it had no duty to engage in the interactive process. But the court was not persuaded by either argument.

Not facially unreasonable. First, the court treated “medically prescribed marijuana” like any other prescription medication; if alternative medications that were permitted by an employer’s policy would be less effective, then a policy exception to use an effective medication would be a facially reasonable accommodation. Considering the language of both the state medical marijuana and handicap discrimination statutes, the court said that disabled or handicapped employees have a state statutory “right or privilege” to reasonable accommodation. For it to find that allowing an employee’s use of medical marijuana is a facially unreasonable accommodation would deny the employee this “right or privilege” solely because of the patient’s use of medical marijuana. Plus, because the medical marijuana act specifically does not require any on-the-job “accommodation of any on-site medical use of marijuana,” the court reasoned that the act implicitly recognizes that off-site medical use of marijuana might be a permissible “accommodation,” which is a disability-related term of art.

Federal criminalization not dispositive. That an employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation, continued the court, since the risk of federal criminal prosecution belongs to the employee, not the employer. Nor was the state high court going to cede public policy to the federal government’s anti-medical marijuana stance, saying to do so “would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”  (In a footnote, the court pointed out that the employer had waived the argument that federal preemption requires the conclusion that an employee’s use of medical marijuana is facially unreasonable as an accommodation.)

Interactive process. Regardless of the reasonableness of the requested accommodation, the employer here had an obligation, before it fired the employee, to participate in the interactive process to determine whether there was an alternative, equally effective medication she could use that was not prohibited by the employer’s drug policy. This “failure to explore a reasonable accommodation alone” was enough to support her handicap discrimination claim, assuming the employee could show that a reasonable accommodation existed that would have enabled her to be a “qualified handicapped person.”

Violation of company policy. The court made fairly short work of the employer’s argument that it fired the employee not because of her disability but because she violated its policy prohibited the use of marijuana. Terminating an employee who was legally being treated with medical marijuana by a licensed physician and claiming it was only following company policy “effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination,” the court concluded.

Undue hardship defense available. Although it reversed the dismissal of the complaint’s handicap discrimination claims, the court was careful to note this did not necessarily mean that the employee would prevail in proving handicap discrimination, explaining how an employer might show an undue hardship for safety reasons, contractual or statutory obligations, or possibly as a recipient of a Federal grant. But that was not appropriate to determine on a motion to dismiss. Additionally, the court found no implied private cause of action under the medical marijuana act and no reason to recognize a separate cause of action for public policy wrongful termination under these circumstances, so dismissal of those claims was affirmed.

The case is Barbuto v. Advantage Sales and Marketing, LLC.

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