On July 17, 2017 the Massachusetts Supreme Judicial Court ruled that under the Massachusetts Anti-Discrimination law an employer may be required to accommodate an employee who is a current user of medical marijuana regardless of the employer’s drug free workplace and drug testing policies.
In Barbuto v. Advantage Sales and Marketing, the employee claimed that before a drug test she notified her employer she would test positive because she has Crohn’s disease and was using lawfully prescribed marijuana under state law. She indeed tested positive and was terminated as a result.
The issue is whether an employer may strictly enforce its drug free workplace policy or whether the employer is obligated to consider making an exception to the policy as an accommodation under state anti-discrimination laws.
Individuals who currently engage in the illegal use of drugs are specifically excluded from the Americans with Disability Act’s (ADA) definition of an “individual with a disability” and marijuana use for any reason is still illegal under federal law.
Therefore current users of marijuana are generally not protected by the ADA.
The Massachusetts court, however, determined that the drug’s status under federal law was not relevant. The court concluded that the employee was not doing anything illegal under state law and the employee was seeking protection under the state anti-discrimination law, which requires employers to accommodate employees with a “handicap.” Since the employee’s use of marijuana did not exclude her from coverage under the state anti-discrimination law, the employer would have to treat the employee just like any other disabled employee and determine if a reasonable accommodation would enable the employee to remain employed.
Employers in Massachusetts must now engage in a case by case assessment of whether accommodating medical marijuana use is reasonable. While the employer is not required to tolerate employees coming to work under the influence, it’s unlikely that a simple preference to have the entire workforce free of marijuana in their system will constitute an undue hardship sufficient to deny the accommodation.
Massachusetts employees: if you are being treated unfairly due to your disability, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.