The Law at Work: Employees’ use of medical marijuana

Filed Under: August 2017 Issue, Toolbox Articles

Periodically, it is helpful to provide updates on certain laws that impact employers and employees, based upon amendments to those laws or new cases from the courts interpreting employment laws. This month’s article provides some important updates.
By Beth O’Neal, Esq.
With the legalization in Massachusetts of medical marijuana, the issue of whether and to what extent employers may lawfully address an employee’s use of medical marijuana, including an employer’s refusal to employ users of medical marijuana, just got a bit less certain and more complicated.
The use of medical marijuana became law in Massachusetts To recap, in November 2012, Massachusetts voters approved the Medical Marijuana Act (“Act”), which eliminates state and civil penalties for the medical use of marijuana for individuals suffering from a “debilitating medical condition” which, as defined, specifically includes “Crohn’s disease.” The Act also provides that “[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.”
In essence, the law provides immunity from state criminal and civil penalties for the use of medical marijuana provided that the user is properly certified as a “qualified” patient and conforms to the requirements of the Act.
However, in the employment context the Act is limited, providing that “[n]othing [in the Act’s terms] requires any accommodation of any onsite medical use of marijuana in any place of employment.” Yet, it is entirely silent on the issue of accommodation for off-site use and also provides that “[n]othing [in the Act’s terms] requires the violation of federal law or purports to give immunity under federal law.” Marijuana continues, to the present time, to be classified under federal law as a Schedule I controlled substance, which identifies it as having “no currently accepted medical use in treatment in the United States” and prohibits anyone from knowingly or intentionally possessing it without incurring criminal and civil penalties.
Barbuto v. Advantage Sales and Marketing LLC
In a July 17, 2017, landmark decision by the Supreme Judicial Court, Massachusetts’ highest court, it was held that that an employee who is a “qualifying patient” under the Act may pursue a claim for handicap discrimination under the state’s anti-discrimination laws. The case is Barbuto v. Advantage Sales and Marketing LLC. It arises out of Christina Barbuto’s use of medical marijuana for the treatment of Crohn’s disease. Significantly, Ms. Barbuto disclosed her marijuana use prior to submitting to her prospective employer’s drug test and before commencing her employment in an entry-level marketing position. She told her employer that she had a written certification allowing her to use marijuana for medicinal purposes, that she did not use it on a daily basis, and that she would not consume it before or during work hours.
Despite making these disclosures and meeting the Act’s requirements, she was discharged after testing positive for the substance. After she filed a charge with the Massachusetts Commission Against Discrimination alleging handicap discrimination, she filed a lawsuit. The trial court dismissed her discrimination claim and the matter was appealed to the Supreme Judicial Court.
The Massachusetts anti-discrimination law applicable to handicapped persons
The Barbuto court examined the Act and the Massachusetts anti-discrimination law applicable to persons with handicaps. Under the Massachusetts anti-discrimination laws, it is an “unlawful practice … [f]or 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 an undue hardship to the employer’s business.”
When a handicapped employee informs her employer that she has a disability, but can perform the essential functions of her position with a reasonable accommodation, the employer must either (1) provide the reasonable accommodation; or (2) engage in an interactive process with the employee to identify the precise limitation resulting from the handicap and potential reasonable accommodations that could overcome those limitations. If, after engaging in the interactive process, the employer cannot provide a reasonable accommodation, and therefore chooses to make an adverse employment decision, the employer bears the burden of proving that the accommodation sought by the employee would cause an undue hardship to the employer’s business.
In this case, Ms. Barbuto alleged in her complaint that she was a “handicapped person” because she suffers from Crohn’s disease and that she is a “qualified handicapped person” because she was capable of performing the essential functions of her job, provided that the employer exempted her from its strict policy of terminating employees who test positive for marijuana. She alleged that her request to be exempt from the policy was a reasonable accommodation, and that her employer failed to provide it.
The employer defended its decision and argued that because marijuana is illegal to possess under federal law an accommodation that would permit Ms. Barbuto to continue to be treated with medical marijuana is per se unreasonable.
As such, the employer argued it had no obligation to participate in the interactive process, as mandated by the anti-discrimination laws. The court disagreed with the employer’s position. It held that the employer did have an obligation to participate in the interactive process with the employee, despite conflicting federal marijuana law. The court observed, “The only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee,” and noted that deeming a request to accommodate the use of medical marijuana as per se unreasonable “would not be respectful of the recognition of Massachusetts voters… that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”
The court also reasoned that where the medical marijuana law expressly does not require “any accommodation of any on-site medical use of marijuana in any place of employment,” this limitation “implicitly recognizes that the off-site medical use of marijuana might be a permissible ‘accommodation.’”
Limitations of the Barbuto decision
Importantly, the court only decided that an employee’s use of medical marijuana under these circumstances is not per se unreasonable, and that Ms. Barbuto may proceed with her handicap discrimination claims in the trial court. Nothing in the Barbuto decision requires employers to allow non-medical use of marijuana, or to accommodate onsite medicinal use of marijuana.
In addition, the court affirmatively stated that its decision “does not necessarily mean that [Barbuto] will prevail in proving handicap discrimination.”
At trial, the employer may offer evidence that the employee’s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the employer’s business. The court commented on three situations in which the accommodation of medical marijuana use could constitute an undue burden on the employer:

  • Safety risks. Where an employer is able to show that the use of medical marijuana would impair the employee’s performance or pose safety risk to the public, the employee, or her fellow employees.
  • Violation of federal laws. Where an employer can prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business (e.g., transportation employers that are subject to U.S. Department of Transportation regulations).
  • Breach of federal contracts. Where an employer can show that allowing medical marijuana use could put its federal contracts in jeopardy, because government contractors and the recipients of federal grants are obligated 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.

Practical next steps for employers
All employers – whether they drug test their employees or not – should review their handbooks and policies with counsel to ensure their policies on drug and alcohol use are up-to-date and in compliance with both state and federal laws. Employers who drug test their employees should pay special attention to their policies in light of the Barbuto decision.
Employers may also want to revisit which employees they are subjecting to drug tests and why. For example, testing employees in safety sensitive positions is understandable and, depending upon the particular position, may be mandated by federal law (e.g., crewmembers upon passenger vessels governed by United States Coast Guard statutes and regulations; truck drivers governed by the DOT). On the other hand, an administrative position, like the one for which Barbuto was hired, may not be the type of position for which a drug test is even appropriate or, if a test is performed, a positive test result may not warrant an automatic exclusion from employment especially where the applicant or employee is disabled; uses medical marijuana for the disability; and otherwise conforms to the employer’s workplace and performance standards while at work.
What does this decision mean for employers in Massachusetts?
As an initial matter, nothing in the Barbuto decision requires employers to allow non-medical use of marijuana, or to accommodate onsite medicinal use of marijuana. For instance, an employer may still terminate employees who use medicinal marijuana onsite or show up to work intoxicated from marijuana.
However, employers can no longer avoid accommodation requests for offsite medical marijuana use based on a drug-free workplace policy, and now must assess such requests for accommodation the same as any other request for an accommodation. Accordingly, it is imperative for employers to review their drug-free workplace policies, amend its policies and practices, and assess ahead of time as to whether accommodating medical marijuana use would create an undue hardship.
Pre-judgment interest on unpaid wages; it all adds up …
I have frequently written about the hazards of not paying employees wages to which they are entitled by law, whether minimum wages; overtime; travel time; or all tips owed to tipped employees. Things just got a bit more hazardous.
The Massachusetts statute applicable to unpaid wages provides that a successful plaintiff (typically an employee who claims not to have been paid what he or she should have) is entitled to liquidated damages at the rate of three times the unpaid wage amount. The trebling of the unpaid wage amounts is mandatory. A different Massachusetts statute, applicable to all civil judgments, provides for what is known as pre-judgment interest, applied at the rate of 12 percent per year. This means that where a plaintiff recovers a judgment against a defendant, the amount of the judgment is increased by application of 12 percent annual pre-judgment interest calculated from the date suit was filed (or in certain circumstances, not applicable here, from an earlier date). In the case noted below, the issue in dispute, decided in favor of the plaintiffs, was whether 12 percent pre-judgment interest should be applied to the wages recovered, or whether, because that amount was already being trebled, no pre-judgment interest was appropriate as being subsumed in the treble damages calculation. In June, the Supreme Judicial Court decided, in the case of George v. National Water Main Cleaning Company, that the plaintiffs were entitled to both treble damages and 12 percent pre-judgment interest on the unpaid single wages. The impact of this ruling is significant to the case because the suit had been filed five years before the parties settled the case, but for the issue of prejudgment interest which was left to the court to decide. At 12 percent pre-judgment interest, for the five years the case was pending, the single damages amount will be increased by 60 percent. The single damages amount will also be trebled (or multiplied by three). Using fictitious number to demonstrate the significance of this decision, is the following example. If a plaintiff recovered $50,000 in unpaid wages and like the case in George, it was pending for five years, the pre-judgment interest would calculate to $30,000. The single damages of $50,000 would be trebled to $150,000. Adding on the prejudgment interest amount of $30,000, brings the total to $180,000 ($50,000 x 3 = $150,000 + $30,000 = $180,000). In accordance with yet another statute, the plaintiff is entitled to post judgment interest of 12 percent, which in our example would be applied to the entire amount of $180,000, until paid by the defendant. In the George case, the numbers were significantly more than the example provided. First off, the matter was a class action comprised of 93 class members and the unpaid wages and benefits were seven figures. But the point is that courts will insure that for employees who are deprived of wages, the full panoply of Massachusetts law will be brought to bear against employers who do not pay employees what they are entitled to. This most recent case is the latest one to make the point. Employers need to consider the risks involved in not paying employees what they are owed because the trebling of unpaid wages and benefits and the imposition of pre and post judgment interest may be significant. Add to this the mandatory award of attorney’s fees also provided by Massachusetts law and the potential for personal liability of a corporate employer’s officers and managers, and the risk is very real and potentially very expensive.
Beth O’Neal, Esq., is a partner in the Boston law firm of Conn, Kavanaugh, Rosenthal, Peisch & Ford LLP. Send questions to

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