As our readers know, we have been monitoring decisions regarding the ability of employers to take disciplinary action against employees for using marijuana at work. The most recent high court to weigh in on this topic is the Massachusetts Supreme Judicial Court, which looked at whether an employer may violate that state’s anti-discrimination law when it fires an employee because of a failed drug test based on the employee’s use of medical marijuana. The Court concluded that employers must accommodate medical marijuana users in the normal course under these circumstances to avoid a violation of that law.  We discuss this important new decision – Barbuto v. Advantage Sales and Marketing, LLC – below.

AS&M Fires a New Hire After She Tests Positive For Marijuana – a Drug She Was Legally Prescribed to Ingest During Non-Working Hours

Advantage Sales and Marketing (“AS&M”) drug tests its employees, including for marijuana. Ms. Barbuto, a recent hire, notified AS&M that it should expect her to fail that drug test because she uses legally prescribed medical marijuana to treat her Crohn’s disease.  More specifically, Ms. Barbuto notified AS&M that she used medical marijuana, that she had a certificate for medical marijuana, and that she did not use medical marijuana during work or before work (i.e., she used it only off-hours and after work).  To no one’s surprise then, she failed the drug test, and AS&M decided to fire her consistent with its drug testing policy.  She sued alleging multiple claims, including disability discrimination under Massachusetts’ anti-discrimination law.

The Court Says AS&M May Have Violated Massachusetts Anti-Discrimination Law By Firing Her Instead of Excluding Marijuana From the Drug Test as a Reasonable Accommodation

The question before the Court was whether AS&M should have accommodated Ms. Barbuto’s use of medical marijuana when administering its drug test. The Court said yes.

It found her to be a “handicapped person” under the law because Crohn’s disease limited her ability to perform her job, and AS&M thus had an obligation to engage in an interactive process to determine whether her proposed accommodation – a waiver of a prohibition against a positive drug test for marijuana use – constituted a reasonable accommodation that allowed her to perform the essential functions of her job.

The Court noted that, as with the use of any properly prescribed medication, the use of lawfully prescribed marijuana – and the resulting modification of any policy that otherwise might prohibit such use – must be viewed as a potential reasonable accommodation for an individual with a qualified handicap. Indeed, Chief Justice Gants specifically noted that, with respect to medical marijuana prescribed for a debilitating condition like Crohn’s disease, “an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.”

An Employer May Still Prove the Existence of an Alternative Accommodation or Undue Hardship To Escape These Types of Claims

While the drug testing exception is facially reasonable, the Court was careful to provide employers with a couple of options to push back against these types of claims: proof that (1) an equally or more effective alternative accommodation existed; or (2) the use of medical marijuana would cause the employer undue hardship.

Regarding the former, the Court appeared skeptical that such an accommodation would exist under these circumstances; regarding the latter, however – undue hardship – the Court noted that the employer could travel down certain avenues to a victory. For example, where the employer could show 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,” or it “would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business,” i.e. in violation of Department of Transportation regulations prohibiting any safety‐sensitive employee subject to drug testing under the Department’s drug testing regulations from using marijuana.

That the Use of Marijuana – Even Legally Prescribed Marijuana – May be Illegal Under Federal Law Did Not Matter.  

The Court noted the illegal status of marijuana under federal law, but found that it does not trump the protections afforded to employees under state law. Chief Justice Gants, writing for the Court, specifically noted “The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation.”  Chief Justice Gants further noted that only the employee, not the company, could be subject to prosecution under federal law for the employee’s drug use and that invalidating this type of accommodation would disrespect Massachusetts voters who explicitly voted to protect the use of medical marijuana for certain individuals suffering from debilitating conditions.


In light of this new decision, Massachusetts employers must reconsider their policies and positions regarding employees who are using lawfully prescribed medical marijuana outside of work hours. In particular:

  1. Employers must be extremely careful when considering any form of disciplinary action related to employees who are using lawfully prescribed medical marijuana.
  2. Employers must approach an employee’s use of lawfully prescribed medical marijuana in the same manner as it approaches an employee’s use of any other lawfully prescribed medication.
  3. Employers must engage in an interactive process with employees to determine whether an accommodation is reasonable, even if the employee is engaging in conduct (using marijuana) that may violate company policy.
  4. Employers must remain aware of the possibility that, in some circumstances, they will be required to provide an exception to their normal policies on drug use and drug tests as a reasonable accommodation to an employee.
  5. Employers should also consider making changes to their drug use policies to account for this type of exception.


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