On July 17, 2017, the Massachusetts Supreme Judicial Court ruled in Barbuto v. Advantage Sales & Marketing, LLC, that an employee using medical marijuana in treatment of a chronic illness may qualify for protection against disability discrimination under state law, even though the use of marijuana remains illegal under federal law. While the decision addresses a subject of increasing interest as states liberalize their laws on marijuana use, and offers some useful advice for employers, it is not likely to set a new, different burden for employers in Massachusetts.

The Plaintiff, Cristina Barbuto, used medical marijuana in successful treatment of Crohn’s disease. Her marijuana use apparently did not affect her job performance or attendance in any way, and she never used marijuana at the office, nor was she impaired by it at work.  The employer nonetheless terminated her after she tested positive on a drug test; the employer took the position that it followed federal, not state, law on this point.

The Supreme Judicial Court held that while there was no private right of action for wrongful termination under the state’s medical marijuana law, Barbuto’s Crohn’s disease qualified as a disability, and required the employer to consider a reasonable accommodation permitting her to continue with a treatment that had proved effective. Therefore, the Court reasoned, the burden was on the employer to demonstrate that permitting Barbuto to continue would pose an undue hardship.

The Court rejected the employer’s argument that the mere fact of federal legality was enough to constitute an undue hardship per se.

  • The decision is not surprising, because of the unusual circumstance here that Barbuto’s marijuana use seems not to have affected her job performance at all. This decision thus follows the Court’s similar treatment of alcoholism, which is a protected disability as a matter of status, but does not preclude employers from taking action if an alcoholic employee’s illness causes problems at work.
  • Also, the Court’s recognition that the medical marijuana statute itself creates no private right of action suggests that similar cases involving recreational use of marijuana may come out differently. Such users will not be able to take advantage of the statutory protection against disability discrimination, and should have no other statutory remedy.
  • The court acknowledged that federal contractors have obligation under the Federal Drug Free Workplace Act, and this decision likely has no application to those employers.
  • Bottom line: As is always the case when dealing with employees with a disability, bright-line, hard-and-fast rules often lead to litigation and bad results for employers.

In dealing with medical marijuana cases, as with any other disability case, employers should consider the situation individually and assess the effect of the employee’s treatment choices on job performance, attendance, and other similar considerations.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.