CIVIL RIGHTS - MEDICAL MARIJUANA RECOGNIZED AS FACIALLY REASONABLE ACCOMMODATION UNDER HANDICAP DISCRIMINATION CLAIM IN MASSACHUSETTS - BARBUTO V. ADVANTAGE SALES AND MKTG., LLC.

• Author: Carroll, Molly
• Position: Case note

Despite being outlawed by federal law, medical marijuana has gained increasing recognition for its medical benefits, as evidenced by the consistent rise of state statutes authorizing the use of medical marijuana for qualifying patients. (1) Massachusetts has followed this legislative trend, and in 2012, voters approved the Medical Marijuana Act: An Act for the Humanitarian Medical Use of Marijuana (the "Act"). (2) The Act states that "there should be no punishment under state law for qualifying patients ... for the medical use of marijuana." (3) However, with the adoption of the Act also comes unanswered questions regarding the best practices to balance governing law with the Act. (4) Specifically, the Act presents issues in the employment context and the ways in which employers can respect the statutory rights given to medical marijuana patients, while also insulating themselves from liability. (5) Employer's concerns have arisen from the fact that the Act does not provide any protection to employers for regulating an employee's use of medical marijuana, and is silent as to whether employers have an obligation to accommodate off-site use of the drug under Mass. Gen. Laws. ch. 151B. (6) In short, Mass. Gen. Laws ch. 151B states that it is "unlawful practice" for an employer to dismiss an employee from employment, or refuse to hire any person alleging to be a qualified handicapped person, because of her handicap when the person is 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." (7) Essentially, the conflict for the employer lies in the reconciliation between the Act and Mass. Gen. Laws ch. 151B. Though the Act states that employers cannot deny medical marijuana users any "right or privilege," and Mass. Gen. Laws ch. 151B provides that handicapped employees have a "right to reasonable accommodation," it does not specifically address how employers should regulate the use of drugs or medication for the employees. (8) However, in Barbuto v. Advantage Sales & Mktg. ,9 a case of first impression, the Massachusetts Supreme Judicial Court ("SJC") attempted to clarify this grey area and addressed whether a qualifying patient, terminated from employment due to testing positive for her medically prescribed marijuana, has a civil remedy against her employer. (10) This decision comes in light of the passing of the Act, and despite traditional interpretations of Mass. Gen. Laws. ch. 151B which have supported the idea that employers do not need to accommodate for medical marijuana. (11) The SJC held that Barbuto was able to bring a state claim against her employer for both handicap and qualified handicap discrimination, and perhaps even more importantly held that Barbuto's use of medical marijuana was facially reasonable as an accommodation. (12)

The facts of the case explain that in the summer of 2014, the plaintiff, Christina Barbuto ("Barbuto"), was prescribed medical marijuana in compliance with Massachusetts law to treat a gastrointestinal condition, known as Crohn's disease. (13) While legally prescribed the medical marijuana. Barbuto accepted a job offer from Advantage Sales and Marketing, LLC ("ASM"). (14) The position was contingent upon the satisfactory completion of a pre-employment drug test. (15) However, before taking the drug test and beginning at ASM, Barbuto voluntarily disclosed to ASM that she used medical marijuana to treat her Crohn's disease. (16) The supervisor at ASM told Barbuto that her medicinal use of marijuana "should not be a problem." (17) Shortly after taking the drug test, Barbuto began her official first day working at ASM. (18) Approximately one day later, ASM terminated Barbuto for testing positive for marijuana, explaining that the company did not care if Barbuto used medical marijuana to treat her medical condition because the company "follows[s] federal law, not state law." (19)

In her initial complaint to the trial court, Barbuto asserted various claims, including invasion of privacy in violation of the Massachusetts Privacy Act, denial of her rights under the Act, and wrongful termination in violation of public policy. (20) Additionally, Barbuto alleged that she was wrongfully terminated for handicap discrimination in violation of various provisions of Mass. Gen. Laws ch. 151B--arguing she was a "handicap person" suffering from Crohn's disease and a "qualified handicap person" capable of performing the essential functions of her job, and was thus, entitled to a reasonable accommodation. (21) In response, after unsuccessfully attempting to remove the case to the United States District Court, ASM filed a motion to dismiss all counts of Barbuto's complaint with the Superior Court on the basis that employers should not be expected to accommodate the federally prohibited use of a drug. (22) In its motion, ASM argued that the Act does not require "any accommodation of any-onsite employee use of marijuana[,]" and further rejected the implication that the Act required the reasonable accommodation to allow employees to use marijuana off-site, just because the Act and Mass. Gen. Laws ch. 151B did not specifically prohibit an employee's off-site use of marijuana. (23) The Superior Court agreed with ASM's argument and dismissed all of Barbuto's claims except for her invasion of privacy claim, reasoning that the Act does not provide immunity from federal law and further rejected the assertion that Mass. Gen. Laws ch. 151B would extend far enough to require an accommodation for medical marijuana given its prohibited federal status. (24)

Barbuto responded by filing a notice of appeal regarding the dismissed claims, leading to the SJC's direct appellate review. (25) On appeal, Barbuto took the position that ASM should have accommodated her debilitating condition, by either: (1) not making her take the drug test, or (2) allowing her to fail the drug test without any adverse employment consequences. (26) ASM rejected Barbuto's claim, arguing that Barbuto failed to state a claim for handicap discrimination for two reasons: (1) she was not a "qualified handicap person" because her requested accommodation, the use of medical marijuana, was facially unreasonable due to marijuana's federal prohibition; and (2) even if she was to be considered a "qualified handicap person," she was terminated not because she was handicap, but because she failed a drug test that all employees were required to pass. (27) The SJC found in favor of ASM's argument and upheld the dismissal of Barbuto's wrongful termination claim and implied a private right of action under the Act. However, the SJC reversed the dismissal of Barbuto's claim under Mass. Gen. Laws ch. 151B and unanimously decided that Barbuto's Crohn's disease was a "handicap" and held that Barbuto's proposed accommodation to use medical marijuana to treat her was "facially reasonable." (28) The SJC also found that ASM should have engaged in the interactive process to find a reasonable accommodation for Barbuto. (29) Thus, while Barbuto was successful in her claims against ASM for handicap discrimination, the SJC held that she did not have an implied private right of action under medical marijuana law, or a claim for wrongful termination as a matter of public policy under the Act. (30) In conclusion, the SJC established that if an employer's tolerance of an employee's use of medical marijuana was a facially reasonable accommodation, then the employer effectively would be denying this "right or privilege" provided for under both Mass. Gen. Laws ch. 151B and the Act. (31) In turn, this decision established that a handicapped employee in Massachusetts has a statutory "right or privilege" to a reasonable accommodation under the Act, which may now include reasonable accommodations for an employee's use of prescribed medical marijuana. (32)

Prior to the passage of the Act, medical marijuana was strictly prohibited in Massachusetts, and possession of marijuana was a punishable felony. (33) Medical marijuana is still prohibited under federal law, and a qualifying patient in Massachusetts who has been lawfully prescribed marijuana still remains subject to potential criminal penalties. (34) However, states are able to authorize the legalization of marijuana under the Rohrabacher Blumenauer Amendment. (35) Additionally, from 2013 to 2017, individuals and companies complying with state legalized medical marijuana programs were able to seek protection from federal prosecution under the Cole Memorandum, which instructed prosecutors and law enforcement agencies to focus only on marijuana related activities outside of state-legal cannabis operations, with medical marijuana enforcement not being one of the specific priorities. (36) However, on January 4, 2018, former Attorney General Jefferson Sessions rescinded the Cole Memorandum and issued a separate memorandum giving federal prosecutors the freedom to prosecute marijuana cultivation, distribution, and possession as they would any other federal crime. (37) Nevertheless, since the Cole Memorandum was rescinded, not a single prosecutor has acted against the industry, and the decision to prosecute will continue to remain in the hands of the U.S. Attorneys. (38) Additionally, it is likely the U.S. Attorneys will continue to refrain from taking action to prosecute especially in light of the support that medical marijuana legalization has received both from the public and under the Rohrabacher-Blumenauer Amendment. (39) Therefore, even without the Cole Memorandum, the federal protection of the medical cannabis industry remains promising, and while there are no guarantees that federal enforcement may not come down on employers or individuals, the current regulatory landscape and...