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Massachusetts: Employers Must Follow Disability Accommodation Rules for Employees Using Medical Marijuana




All Employers with MA Employees July 17, 2017 Contact your OneDigital Representative

The Massachusetts Supreme Judicial Court recently ruled that an employee may pursue a disability discrimination claim under state law against an employer for failure to accommodate the employee’s use of medical marijuana

In Baruto v. Advantage Sales and Marking, LLC, the plaintiff was told after accepting an offer of employment that she needed to complete a successful drug test. She informed her employer that she would fail the test due to medical marijuana use for Crohn’s disease. However, she agreed that she would not use marijuana before or during work. The plaintiff failed the drug test as predicted, and ultimately was terminated as a result based on federal law’s treatment of marijuana.

The court stated that an employee may claim handicap discrimination, in violation of state law (G.L. Chapter 151B), if terminated for medical marijuana use. However, there is no private cause of action available under the state Medical Marijuana Act. According to Chapter 151B, to succeed on such a claim, a plaintiff must show that she is a “qualified handicapped person, capable of performing the essential functions of the position … with reasonable accommodation, unless the employer can demonstrate that the accommodation … would impose an undue hardship to the employer’s business.”

There, the plaintiff qualified as a handicapped person due to her Crohn’s disease, and claimed she would be able to perform the essential functions of her job with an accommodation where the employer waives its drug policy barring employment from those who test positive for marijuana. When dealing with a qualified handicapped employee, the court stated that an employer has a duty to engage in the interactive process to determine whether there are equally effective medical alternatives to the prescribed medical marijuana. If there is no equally effective alternative, the employer must prove that the use of medical marijuana would cause an undue hardship.

Moreover, the court reaffirmed the validity of the state’s Medical Marijuana Act, and looked to its requirement that patients not be denied “any right or privilege” on the basis of medical marijuana use, including the statutory “right or privilege” to a reasonable accommodation under Chapter 151B. The court further noted that the Medical Marijuana Act does not require “any accommodation of any on-site medical use of marijuana in any place of employment.”

Nonetheless, after engaging in the interactive process, an employer may still show that permitting off-site medical marijuana use is an undue hardship, for example, if it (1) impairs the employee’s performance of work, (2) poses an “unacceptably significant” safety risk to the public, employee, or fellow employees, or (3) violates the employer’s contractual or statutory obligation thereby jeopardizing its ability to perform its business (e.g., Department of Transportation regulations, federal contractor requirements, etc.).