In a decision awaited by many in the industry, the Massachusetts Supreme Judicial Court ruled that a licensed medical marijuana user who was fired after testing positive for marijuana can proceed with claims under the state’s “handicap discrimination” statute. The case is Cristina Barbuto v. Advantage Sales and Marketing and the Court’s opinion was issued on July 17, 2017.

After accepting a job offer from Advantage Sales and Marketing, Barbuto was told she would be required to undergo a drug test. Barbuto, who was a licensed medical marijuana user in Massachusetts and used the drug to treat Crohn’s disease, informed her employer that she was a licensed user and would test positive on the test. She also informed her employer that she did not use the drug daily and would not consume it before work.

Several months later, Barbuto was informed that she was being terminated because she tested positive for marijuana on a drug test. Barbuto filed suit, alleging that her termination violated Massachusetts’ medical marijuana statute, the state’s disability discrimination law, and public policy. Several of the plaintiff’s claims—including disability discrimination and wrongful termination—were dismissed and the plaintiff appealed.

Cannabis and the law
Copyright: jirkaejc / 123RF Stock Photo

The Massachusetts Supreme Court found that the Barbuto was a “handicapped person” under the state’s disability statute, and that her use of medical marijuana recommended by her doctor was a “reasonable accommodation,” thus finding that she stated a prima facie case of discrimination. And the court denied the defendant’s arguments that allowing Barbuto to use marijuana was per se unreasonable, because marijuana was illegal under federal law, as well as the argument that allowing Barbuto to use marijuana posed an “undue hardship,” both of which are defenses under the statute. Therefore, these claims will proceed in the trial court.

However, the court affirmed the dismissal of other claims by Barbuto, including her claim under the state medical marijuana statute. The court found that the statute did not create a private right of action, and found there was not a sufficient basis to imply such a right. This ruling contrasts with a similar recent case from Rhode Island (which I blogged about yesterday) where the state court there implied a private cause of action under the state medical marijuana statute.

The main takeaway from this case is that – regardless of the provisions of your state medical marijuana statute or the fact that marijuana use is still illegal under federal law – is that employers should engage in an interactive process with employees who are licensed medical marijuana users before taking any adverse employment actions. Furthermore, it is always critical to document such a process and, where applicable, to tie the employment decision to factors (e.g., safety and ability to complete the job) other than simply stating that the employee is a marijuana user.

For more tips for employers, check out my post from yesterday.

Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or