Is Your Drug Policy About To Go Up In Smoke?

While Massachusetts Justices Rule Medical Marijuana Use Can Be Reasonable Accommodation, Ohio’s Marijuana Law Provides To The Contrary

On July 17, the Massachusetts Supreme Judicial Court ruled that employers can be held liable for disability discrimination if they fire an employee for using legally prescribed marijuana as revealed in a positive drug test. This case appears to be the first decision nationwide in which a court found an employer’s duty reasonably to accommodate a person using medically-prescribed marijuana for a disability trumped the blanket prohibition on using marijuana under federal law, providing a disabled employee a cause of action for disability discrimination. While this case is limited to the State of Massachusetts, the reasoning therein could be accepted by courts in other states and require employers to make exceptions to their workplace drug bans to accommodate workers with bona fide disabilities. However, Ohio’s Medical Marijuana Law passed last year includes provisions contrary to this decision which allow employers to maintain their current drug-free practices.

Factual Background

In 2012, Massachusetts voters approved an initiative petition entitled, “Act for the Humanitarian Medical Use of Marijuana,” which provides that “there should be no punishment under state law for qualifying patients ... for the medical use of marijuana.” Christina Barbuto accepted an entry-level position with Advantage Sales and Marketing (“ASM”) in the late summer of 2014. She was required to take a mandatory drug test in connection with her hire. Barbuto informed her supervisor before the test that she would test positive for marijuana because she suffers from Crohn’s disease, a debilitating gastrointestinal condition, and that her physician had provided her with a written medical certification that allowed her to use marijuana for medicinal purposes. She informed her supervisor that she did not use marijuana daily, and would not consume it before work or at work.

Typically Barbuto used marijuana in small quantities at her home, usually in the evening, two or three times per week. Since her medical condition left her with “little or no appetite,” she found it difficult to maintain a healthy weight. After she started to use marijuana for medicinal purposes, she gained 15 pounds and was able to maintain a healthy weight. Her supervisor initially informed her that her medical use of marijuana “should not be a problem,” but that he would confirm this with others at ASM.

After submitting her urine sample, attending a training program, and completing her first day of work, Barbuto was informed by ASM’s HR representative that she was terminated for testing positive for marijuana. The HR representative allegedly told Barbuto that ASM did not care if Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.” Barbuto thereafter filed a complaint in Superior Court alleging, among other claims, handicap discrimination in violation of state law, invasion of privacy, denial of the “right or privilege” to use marijuana lawfully as a registered patient to treat a debilitating medical condition in violation of the medical marijuana act, and violation of “public policy” by terminating her for lawfully using marijuana for medicinal purposes. The Superior Court judge dismissed all claims but for the invasion of privacy claim, stating they were not actionable, but stayed the case pending review of Massachusetts’ highest court.

Massachusetts Justices Rule Marijuana Users Can Sue for Bias

The Court first noted that Massachusetts’ law expressly provides, “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.” It also acknowledged the “unusual backdrop” of this case in that “nearly 90% of states, as well as Puerto Rico and D.C.,” allow the limited possession of marijuana for medical treatment, while federal law holds marijuana as a “Schedule I substance” whose possession is a crime, regardless of whether it is prescribed by a physician for medical use. Consequently, a qualifying patient in Massachusetts who has been lawfully prescribed marijuana remains potentially subject to federal criminal prosecution for possessing the marijuana prescribed.

Consistent with most state disability statutes, Massachusetts’ handicap discrimination law provides that it is an “unlawful practice... [f]or any employer... to dismiss from employment or refuse to hire..., because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” The Court found that Barbuto adequately stated a claim for handicap discrimination because Crohn’s disease is a recognized disability and the allegations in her complaint, if accepted as true, present a facial showing that she is a “qualified handicapped person” who was terminated because of her handicap. “Where a plaintiff is handicapped and where she suffered an adverse employment action even though she was capable of performing the essential functions of her position with some form of accommodation,” the Court wrote, “plaintiff adequately alleges a claim of handicap discrimination if the accommodation that she alleges is necessary is facially reasonable.” The Court rejected ASM’s argument that because Barbuto’s continuing use of medical marijuana is a federal crime it could never be “a reasonable” accommodation. It noted that, if an employer had a drug policy prohibiting the use of certain medication, even where lawfully prescribed by a physician, the employer nonetheless would have a duty to engage in an “interactive process” with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy. Where no equally effective alternative exists, the Court noted, the employer bears the burden of proving that the employee’s use of the medication would cause an undue hardship to the employer’s business. The Court concluded:

"Under Massachusetts law, as a result of the act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Where, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation."

While the Court recognized that the act does not require “any accommodation of any on-site medical use of marijuana in any place of employment,” it flatly rejected the employer’s claim that the employee’s possession of medical marijuana violating federal law makes it “per se” unreasonable as an accommodation. “The only person at risk of Federal criminal prosecution for ... possession of medical marijuana is the employee,” wrote the Court, “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 Court went on to hold that ASM failed to participate in the required “interactive process” to explore with Barbuto whether there was an alternative, equally effective medication she could use that was not prohibited by the employer’s drug policy.

The Court’s conclusion was only that an employee’s use of medical marijuana is not “facially unreasonable” as an accommodation, as the lower court had held. It recognized that its ruling did not “necessarily mean that the employee will prevail in proving handicap discrimination.” The employer may still be able to demonstrate that the use of medical marijuana is not a reasonable accommodation because it would impose an “undue hardship” on the employer’s business. The Court offered the example of an employer proving that the continued use of medical marijuana would impair the employee’s performance of her work or pose an “unacceptably significant” safety risk to the public, the employee, or her fellow employees. The Court also acknowledged that there may be contractual or statutory obligations which an employee’s use of medical marijuana may breach, thereby jeopardizing an employer’s ability to perform its business. For instance, transportation employers are subject to regulations promulgated by the U.S. Department of Transportation prohibiting any safety-sensitive employees subject to drug testing under the Department’s regulations from using marijuana. Similarly, government contractors and the recipients of federal grants are obligated to comply with the Drug Free Workplace Act which requires them to make a “good faith effort ... to maintain a drug free workplace.” The Court suggested that these legally-mandated obligations may suffice to establish “undue hardship” under the required discrimination analysis.

While the Court remanded the handicap claims for further consideration by the lower court, it rejected Barbuto’s claim that the medical marijuana act provided her a private cause of action for violation thereof, since the statute provided no such action and there was no indication from the state legislature supporting such an inference. The Court also declined to find a cause of action for violation of “public policy” in that the state’s handicap discrimination laws already provide a remedy for the alleged wrongdoing here.

Ohio’s Medical Marijuana Law Safeguards Employer Rights

Ohio’s passage of House Bill 523 eff. Sept. 6, 2016 made it the 25th state to legalize medicinal marijuana. It is expected to take up to two years to draft and implement regulations governing the manufacture and distribution of medical marijuana. However, the law as written provides employers the following rights and abilities which avoid the consequences of the Barbuto decision:

• Employers may still test employees for alcohol and drugs, including marijuana, and may take an adverse employment action (non-hire, termination, etc.) even if the employee uses marijuana off premises and has a valid prescription to use due to his/her medical condition.
• Ohio’s new law clearly states that employee is not required to provide a legal accommodation to an employee to use, possess or distribute medical marijuana.
• Ohio’s law contains a provision providing that, for unemployment purposes, an employer has “just cause’ to fire an employee for his/her use of medical marijuana, provided the use violated the employer’s drug policy.
• If an employee is injured at work and tests positive for medicinal marijuana, his/her employer retains its rebuttable presumption that his/her marijuana use was the cause of the workplace injury. The employee would not be eligible to receive workers’ compensation benefits unless he/she demonstrated that his/her drug use was not a factor in the injury

Takeaways For Employers

Ohio employers may maintain their current drug-free standards and consequences for employee marijuana use. Again, the Court’s decision here is limited to the State of Massachusetts. It remains to be seen how this decision will impact general liability insurance and workers’ compensation claims in that state. This case may end up an outlier – a judicial anomaly confined to a single state. Keep in mind that other courts not bound by this decision certainly may rule that an employee’s use of medically-prescribed marijuana may be per se unreasonable in that such use violates federal law. What flies in Massachusetts may not fly in “less blue” states. Nonetheless, employers should now recognize that employees with bona fide disabilities working in various states likely will cite this case to argue that their use of medically-prescribed marijuana outside of the workplace, perhaps revealed by a drug test, should be tolerated as a reasonable accommodation of their disabilities. Many of the states that have sanctioned medical marijuana have not provided by way of statute the employer protections provided under Ohio law.