On July 17th of 2017, the Supreme Judicial Court of Massachusetts determined that an employee could bring a disability discrimination lawsuit against her employer for firing her because of her off-duty use of medical marijuana. The employee, Cristina Barbuto, brought the claim against her former employer, Advantage Sales & Marketing LLC, when it fired her after she tested positive for marijuana during a mandatory drug test. Barbuto’s physician provided her with medical marijuana for Crohn’s disease, which she disclosed to her supervisor before taking the test. Barbuto’s supervisor discussed the issue with others at Advantage, and later called Barbuto to confirm that her lawful medical use of marijuana would not be a problem. Barbuto completed a company training program, in which she was given a uniform and assigned a work location. After completing her first day, she received a call from a Human Resources representative, who told her that she was being terminated for testing positive for marijuana. The representative told Barbuto that Advantage did not care that she used marijuana for medical purposes because “we follow federal law, not state law.”
State Medical Marijuana Laws
As part of her six-count complaint, Barbuto alleged, among others, claims for handicap discrimination, interference with her right to be protected from handicap discrimination, and denial of the “right or privilege” to use marijuana lawfully as a registered patient to treat a debilitating medical condition in violation of Massachusetts’ medical marijuana act. Massachusetts’ medical marijuana act provides, in part, that any legal medical marijuana user, “…shall not be penalized under Massachusetts law… or denied any right or privilege, for such actions.” Similarly, the Arkansas Medical Marijuana Amendment provides that a legal medical marijuana user shall not be denied “any right or privilege,” but goes even further than the Massachusetts law by providing that, “An employer shall not discriminate against an individual in hiring, terminating, or any term or condition of employment, or otherwise penalize [a legal medical marijuana user].”
The Massachusetts court found that Barbuto could not bring a cause of action under the state medical marijuana law. It reasoned that the voters who supported the medical marijuana initiative did not intend to create a private cause of action under the law, and that a comparable cause of action already exists under the state’s handicap discrimination laws. However, because the Arkansas Medical Marijuana Amendment expressly prohibits employment discrimination on the basis of medical marijuana use, Arkansas employers should be aware that employees could potentially sue under the amendment.
State Disability Discrimination Laws
On the other hand, the Massachusetts court found that Barbuto could sue her employer under the state’s disability discrimination statute. That statute provides, in part:
“It is an unlawful practice… for 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 and undue hardship to the employer’s business.” G.L. c. 151B, §4(16).
Similarly, the Arkansas Civil Rights Act provides that an employer may not discriminate against a qualified person because of a disability. Ark. Code Ann. § 16-123-107. Arkansas Civil Rights Act claims are analyzed under the same principles as the Americans with Disabilities claims, which require that employers must provide reasonable accommodations to qualified employees with disabilities, unless doing so would pose an undue hardship.
Advantage made two arguments as to why Barbuto did not suffer handicap discrimination. First, they claimed that she was not a qualified handicapped person because the accommodation she sought—permission to use medical marijuana—was a federal crime and therefore facially unreasonable. The court rejected this argument, reasoning that if an employer has a policy against a medication that is legally used under state law, including marijuana, the employer must engage in an interactive process to determine whether there are medical alternatives that would not violate the policy. If there is no equally effective alternative, the employer must prove that the employee’s use of the medication would cause an undue hardship to the employer’s business. If there is no undue hardship, an exception to the employer’s drug policy would be a reasonable accommodation.
The court also pointed out that the Massachusetts medical marijuana act does not require employers to accommodate on-site use of medical marijuana. The court reasoned that this limitation implicitly recognizes that off-site use might be a reasonable accommodation for someone with a disability. The Arkansas Medical Marijuana Amendment contains similar language, and an Arkansas court could come to a similar conclusion.
The court also rejected Advantage’s argument that the federal criminality of marijuana possession made the accommodation per se unreasonable. The court pointed out that an employer is not subject to prosecution for its employee’s possession of an illegal substance.
Advantage’s second argument was that it did not fire Barbuto because of her disability, but because her failed drug test constituted a violation of Advantage’s policy. The court rejected this logic, finding that the company’s policy resulted in Barbuto being fired because of her disability. The court analogized that a company policy against insulin would effectively constitute illegal discrimination against diabetics.
The court discussed two prominent marijuana cases when it determined that Barbuto could bring this cause of action. In Coats v. Dish Network, LLC, a Colorado court ruled in favor of an employer who argued that a state statute, which provides that an employer could not discharge an employee for participation in lawful activities outside of work, did not apply to marijuana possession as it is unlawful under federal law. The Washington Supreme Court held in Roe v. Teletech Customer Care Management that the state’s medical marijuana law did not prohibit the discharge of an employee for medical marijuana use. The Massachusetts court distinguished these cases because the plaintiffs did not bring handicap discrimination claims like Barbuto did.
The Supreme Judicial Court of Massachusetts remanded Barbuto’s case, so she will have to defend her claim in court if Advantage offers evidence that her use of medical marijuana would impose an undue burden on the company and therefore be an unreasonable accommodation. The court suggested that an employer might show that an employee’s off-duty marijuana use would hinder her performance or create an unacceptable safety risk. Unlike the Massachusetts act, the Arkansas Medical Marijuana Amendment provides an express exception for “safety sensitive” positions so that employers can exclude medical marijuana users from dangerous job positions altogether. The Massachusetts court also suggested that an employer might show that an employee’s use of marijuana is an unreasonable accommodation if it would violate the employer’s contractual or statutory obligations.
What does this mean for Arkansas employers? The medical marijuana laws in Arkansas and Massachusetts contain important similarities and differences. While the Massachusetts case is significant because it creates a cause of action for medical marijuana users under a state disability discrimination law, Arkansas courts are free to come to a different conclusion. Until Arkansas courts decide a case involving medical marijuana users in the workplace, Arkansas employers are advised to review the Arkansas’ medical marijuana laws and revise their substance abuse policies and job descriptions accordingly.