Marijuana Law, Policy, and Authority

Massachusetts court finds employers must accommodate employee’s off-duty medical marijuana use

Posted by on Friday, July 21, 2017 in News, Updates.

Massachusetts’ highest court has ruled that employers have a duty to accommodate their employees’ off-duty use of medical marijuana.  The ruling in Barbuto v. Advantage Sales and Marketing, LLC (Mass. 2017), concerned a state handicap discrimination law (similar to the ADA) which makes it unlawful for any employer

“to dismiss or refuse to hire . . ., because of [her] handicap, any person . . . capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required . . . would impose an undue hardship to the employer’s business.”

Barbuto is significant because it is one of the first decisions (if not the first decision) to interpret a generic anti-discrimination statute to cover marijuana users. As discussed in Chapter 13 (p. 662-72), a handful of states have passed legislation that expressly requires employers to accommodate lawful medical marijuana use. But courts have generally refrained from finding any such duty implied by medical marijuana reforms or by anti-discrimination laws that cover the use of other drugs.

Importantly, there are some limitations on the decision. The Barbuto court noted that employers had no duty to accommodate marijuana use on-the-job, or to accommodate off-duty marijuana use when doing so imposes an undue hardship on the employer – say, because of legitimate safety concerns.  Also, interestingly, the court noted that the defendant-employer in Barbuto had waived any claim that the duty to accommodate marijuana use is preempted by federal law (see n. 9 on page 17 of the opinion). This may have been a mistake, because, as discussed in Chapter 13 (p. 672-680), other courts have concluded (though perhaps erroneously) state law is preempted to the extent it requires private employers to accommodate marijuana use which is forbidden by federal law.

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