MARIJUANA EMPLOYMENT LAW UPDATE: MASS. SUPREME JUDICIAL COURT RULES THAT EMPLOYERS MUST CONSIDER WAIVING THEIR DRUG-FREE POLICIES FOR EMPLOYEES USING MEDICALLY PRESCRIBED MARIJUANA OFF-SITE TO TREAT A DISABILITY

by Employment Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com
July 19, 2017

Our state’s highest Court has ruled that employers generally must consider waiving their drug-free policies for an employee who uses medically prescribed marijuana off-site to treat a disability, unless the waiver would cause “undue hardship”. The new ruling does NOT mean that employers must now permit marijuana use at work. The decision is entitled Barbuto vs. Advantage Sales and Marketing, LLC.

Facts of the case: Cristina Barbuto was hired as a supermarket sales promotion worker by Advantage Sales and Marketing (ASM) in 2014, after Massachusetts voters had approved a ballot initiative legalizing medically prescribed marijuana. After she accepted the position, Ms. Barbuto was informed that she must undergo pre-hire drug testing. Ms. Barbuto called her prospective supervisor and explained that she would test positive for marijuana because she used medically prescribed marijuana to help control her Crohn’s disease. She said that she did not use marijuana daily and would not consume it before work or at work. The supervisor said that this “should not be a problem,” and after checking further, called back and confirmed this.

In the evening after her first day at work, an ASM Human Resources representative called and terminated Ms. Barbuto for testing positive for marijuana. The representative explained that it did not matter if Ms. Barbuto’s marijuana use was lawful under state law because federal law criminalizes all marijuana use, and ASM on this point followed federal law.

Ms. Barbuto filed several claims against ASM, including a claim that ASM had a legal duty to engage in an “interactive process” with her to determine whether it could accommodate her off–work use of medically prescribed marijuana to control her disability of Crohn’s disease. ASM argued that it had no duty to consider waiving its drug testing policy, in particular because marijuana use is a crime under federal law.

The SJC’s Ruling: The SJC ruled that:
  • Employers generally must consider whether they can accommodate off-work marijuana use that is prescribed to treat a disability, in the same way that they are required to do for other types of lawfully prescribed medications
  • If an employee’s doctor believes that medical marijuana is the most effective medication for the employee’s disability, the employer must generally consider whether it can accommodate this medical treatment off-site without undue hardship.
  • An employer would generally violate the state disability discrimination law by terminating an off-work medical marijuana user without first engaging in an “interactive process” to explore whether there is an equally effective medication that the employee could use that is not prohibited by the employer’s drug policy.
The SJC rejected ASM’s concern that federal law criminalizes all marijuana use. The Court said that the federal law was enacted in 1970, before the efficacy of medical marijuana was recognized, and nearly ninety per cent of the states have legalized medical marijuana since that time.

The SJC’s discussion of circumstances that may constitute “undue hardship”:

The SJC gave examples of circumstances that might constitute “undue hardship” which would excuse an employer from waiving its drug-free policy for off-work medical marijuana use:
  • If the employee’s use of medical marijuana would impair the employee’s work performance, or pose an “unacceptably significant” safety risk to the public, the employee or coworkers
  • If the employee’s medical marijuana use would violate the employer’s contractual or statutory obligations, thereby jeopardizing the employer’s ability to conduct its business
In this regard, the Court noted that it “recognizes” that

-- Transportation employers are subject to U. S. D.O.T. regulations that prohibit any safety‐sensitive employee subject to drug testing under D.O.T. regulations from using marijuana; and

--Federal government contractors and recipients of Federal grants are obliged to comply with the Drug Free Workplace Act which requires them to make “a good faith effort . . . to maintain a drug-free workplace,” and prohibits any employee from using a controlled substance in the workplace.

STEPS EMPLOYERS SHOULD CONSIDER TAKING IN RESPONSE TO THIS RULING:

There are a number of steps that employers should consider taking in response to this new ruling:
  1. Review your anti-drug, drug testing, disability, prescription drug and other policies, and remove any wording that is inconsistent with the new ruling. For example, a blanket ban of all marijuana use may now need to be revised.
  2. Train supervisors, managers and HR personnel to be sure they understand that they cannot immediately reject a request to accommodate an employee or applicant who is an off-site user of marijuana prescribed to treat a disability.
  3. Design a procedure to be followed if an off-site medical marijuana user tests positive for marijuana, or seeks an exception to your drug-free policy, or requests a medical marijuana related accommodation
  4. Review your contracts and consider the laws, regulations, and professional requirements to which your business and/or your employees are subject. Are there any legal requirements or contractual obligations that would be violated if employee off-site medical marijuana use were permitted?
  5. Consider whether there would be “unacceptably significant” safety or work performance risks if your employees, or certain types of employees, used medical marijuana off-site.
  6. Some employers may wish to consider whether they want to drug test for marijuana at all, given this new ruling and the new legalization of recreational marijuana use under certain circumstances.
  7. If you get a request to waive your drug free policy for an off-site medical marijuana user, it will probably be advisable to consult your employment attorney. For example, you may need assistance in determining what questions can and should be posed to the marijuana user’s prescribing doctor. You also may want your employment attorney to review and suggest improvements to your new medical marijuana related policies and procedures
(NOTE: the Facts of the Case described above, as alleged by Ms. Barbuto, were assumed to be true by the Court, as it is required to do in deciding a Motion To Dismiss. If the case should later go to trial, employer ASM would be able dispute any of those facts with which it disagrees.)







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Contact Info

Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com