Last week the legal blog world lit up with the case of Barbuto v. Advantage Sales and Marketing, LLC, a decision of the Massachusetts Supreme Court on July 17, 2017. Both of my fellow panelists, Robin Shea and Jonathan Hyman, on our ADA and employment issues panel at the Federal Bar Association convention in September here in Atlanta have talked about this issue previously.  Jon has a blog entry on this case, which can be found here. I thought I would add my own thoughts. As is usual, the blog entry is divided into categories and they are: facts; Massachusetts specific things and federal law; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff has Crohn’s disease and has a prescription for the medical use of marijuana she uses usually in the evening two or three times per week. The use of the drug allows her to maintain a healthy body weight. Plaintiff was offered an entry-level position with Advantage Sales and Marketing and accepted the offer. A representative of the defendant later left a message for the plaintiff saying she had to take a mandatory drug test. Plaintiff immediately told the employee who would be her supervisor she would test positive for marijuana explaining that she suffered from Crohn’s disease and had a written certification from her physician allowing the medical use of marijuana. She also mentioned that she was a qualifying medical marijuana patient under Massachusetts law and that she did not use it daily nor would she consume it before work or at work. The supervisor told the plaintiff that the medicinal use of marijuana should not be a problem but he would confirm this with others at Advantage Sales and Marketing. He later telephoned her and confirmed that her lawful medical use of marijuana would not be an issue with the company. However, once the human resources department received her urine test, they immediately terminated her for testing positive for marijuana saying that they did not care if she used marijuana to treat a medical condition because the company follows federal law and not state law. Plaintiff then filed a complaint in state court alleging handicap discrimination under Massachusetts law as well as alleging violations of other laws (we will just focus on the handicap discrimination piece). At the trial court level, the judge granted the defendant’s motion to dismiss and plaintiff appealed.

II

Massachusetts Specific Things and Federal Law

1. Under the Massachusetts medical marijuana act a qualifying patient is a person who has been diagnosed by a licensed physician as having a debilitating medical condition, and Crohn’s disease is expressly included within the definition of a debilitating medical condition.
2. The Massachusetts medical marijuana act also provides that any person meeting the requirements under this law cannot be penalized under Massachusetts law in any manner or denied any right or privilege for such actions.
3. While Massachusetts uses the term handicapped instead of disability with respect to its anti-disability discrimination laws, the definition of handicapped under Massachusetts law matches up with the definition of disability under the ADA.
4. Massachusetts law also matches up with the ADA with respect to what constitutes an unlawful practice. That is, the focus is on whether the handicapped person can perform the essential functions of the job with reasonable accommodations. If so, then in Massachusetts, the plaintiff wins unless the employer can demonstrate an undue hardship to the employer’s business.
5. Similarly, the Massachusetts Commission against Discrimination has issued guidelines on what is a reasonable accommodation. Those guidelines state that a reasonable accommodation is any adjustment or modification to a job (or the way the job is done), employment practice, or work environment that makes it possible for a handicapped individual to perform the essential functions of the position and to enjoy equal terms, conditions and benefits of employment. This phrasing is, very similar, if not identical, to the ADA.
6. Under federal law, marijuana is a scheduled I controlled substance under the controlled substances act. Possession of such a substance is a crime, regardless of whether it is prescribed by a physician for medical use. Therefore, a qualifying patient in Massachusetts who has been lawfully prescribed marijuana remains potentially subject to federal criminal prosecution for possessing the prescribed marijuana.

III

Court’s Reasoning

1. Plaintiff is a handicapped person under Massachusetts law because as a result of Crohn’s disease combined with irritable bowel syndrome, the plaintiff had little or no appetite and had difficulty maintaining a healthy weight in the absence of the use of medical marijuana.
2. While the plaintiff did not specify the major life activities that were substantially limited, working would be one based upon the allegations in the complaint. Another, would be eating.
3. Where an employee is handicapped because she suffers from a medical condition that can be alleviated or managed with medication, one generally expects an employer not to interfere with the employee taking such medication nor to terminate the employee because she took the medication.
4. Where the employer has a drug policy prohibiting the use of such medication even if it is lawfully prescribed by a physician, the employer has a duty to engage in the interactive process with the employee to determine whether there are equally effective medical alternatives to the prescribed medication whose use are not in violation of this policy.
5. If no equally effective alternative exists, then under Massachusetts law, the employer bears the burden of proving that the employee’s use of the medication would cause an undue hardship to its business.
6. Since the burden of proving undue hardship is on the employer, where the employee brings a handicap discrimination claim following her dismissal for the use of her prescribed medication, that complaint survives a motion to dismiss where it adequately alleges that the plaintiff is a qualified handicapped person because she could have competently performed her job with the medication.
7. Under Massachusetts law, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.
8. It is a facially reasonable accommodation to make an exception to an employer’s drug policy where in the opinion of the employee’s physician, medical marijuana is the most effective medication for that medical condition and where any alternative medication permitted by the employer’s drug policy would be less effective.
9. A qualified handicapped employee has a right under Massachusetts law not to be fired because of that handicap. That right includes the right to require an employer to make a reasonable accommodation for a handicap to enable her to perform the essential functions of her job.
10. The medical marijuana act itself declares that a person cannot be denied any right or privilege on the basis of their medical marijuana use, and a handicapped employee has a statutory right or privilege to reasonable accommodation under Massachusetts law. To hold otherwise, would allow an employer to deny such a right or privilege solely because of the patient’s use of medical marijuana.
11. The medical marijuana act implicitly recognizes that off-site medical use of marijuana as a permissible reasonable accommodation.
12. It doesn’t matter that possession of marijuana is a violation of federal law because the only person at risk of federal criminal prosecution is the employee and not the employer. That is, an employer would not be the one in possession of medical marijuana nor the one aiding and abetting its possession simply by permitting an employee to continue his or her off-site use.
13. Nearly 90% of States have enacted laws regarding medical marijuana. Such laws reflect the determination by the States that marijuana when lawfully prescribed by a physician has a currently accepted medical use in treatment.
14. Declaring medical marijuana to be a per se unreasonable accommodation due to federal law would be disrespectful of Massachusetts voters (such sentiments regarding medical marijuana being shared by legislatures and the vast majority of States), who stated that marijuana has accepted medical use for some patients suffering from debilitating medical conditions.
15. Even if you assume that medical marijuana is a facially unreasonable accommodation, which according to the Massachusetts Supreme Court it is not, the employer loses because it did not engage in the interactive process prior to terminating the employee.
16. It is certainly possible that the defendant may yet prevail on summary judgment by showing that making an exception to the policy constitutes an undue hardship on their business. For example, perhaps the employer could show that the plaintiff’s performance of her work poses an unacceptably significant safety risk to the public, to the employee or to fellow employees. Or, perhaps the employer can show that the use of marijuana by an employee violates an employer’s contractual or statutory obligation thereby jeopardizing its ability to perform its business. For example, transportation employees are subject to regulations of the United States Department of Transportation prohibiting any safety sensitive employees subject to drug testing under their regulation from using marijuana.
17. Whether an undue hardship exists, is much better resolved at the summary judgment or trial stage rather than through a motion to dismiss.

IV

Takeaways:

1. When dealing with the ADA, you can’t forget about state law. In this situation, the ADA and Massachusetts law matchup with respect to the phrasing of their disability discrimination laws. It is an important point because on the employment side, the ADA only applies to employers with 15 or more employees. State laws may have a lower number.
2. Massachusetts is using the term “handicap,” but the meaning is the same as disability under the ADA. I will add that “handicap,” is a term that is offensive to people in the disability community. Perhaps, a legislator in Massachusetts will come up with a bill replacing “handicap,” with, “disability.”
3. While the court makes a mention that Massachusetts law prohibits penalizing a person qualifying on the medical marijuana act in terms of denying that person any right or privilege, for purposes of ADA discrimination matters, I am not sure that such a provision is dispositive. That is, it isn’t clear to my mind whether you would still get to the same place in any event.
4. Very interesting that the plaintiff did not allege a major life activity that was substantially limited, but the court went ahead and made a logical guess as to what major life activity was substantially limited. If this were filed in a federal court, I would expect the defendant to file a motion to dismiss saying that under Iqbal and Twombly, the complaint fails because a substantial limitation on a major life activity was not alleged. So, if on the plaintiff’s side, be sure to specifically mention in a major life activity that is substantially limited because particularly at the federal level, you just can’t expect a court to come up with a major life activity on its own and do the plaintiff a solid so to speak as the Massachusetts Supreme Court did here.
5. If your state has a medical marijuana statute, don’t go firing that person as a result of a marijuana positive drug test without first undertaking an interactive process to figure out what the alternatives might be.
6. If your State has a medical marijuana statute, it may be a per se reasonable accommodation to make an exception to the drug use policy for a person using medical marijuana. Again, the key is the interactive process.
7. It makes sense to me that any medical marijuana act implicitly recognizes off-site medical use of marijuana and therefore, such use is a reasonable accommodation.
8. Very interesting about the federal law analysis. That is, since the employee bears the risk of prosecution, the employer cannot claim federal law prevents making an exception to his drug use policy for a person using medical marijuana. It will be very interesting to see if this analysis ultimately prevails.
9. Very interesting to me how the people that the plaintiff was going to work for at Advantage Sales and Marketing greenlighted her going forward with her application and even confirmed as much, but then human resources decided otherwise. One wonders who the supervisor talked to before he gave the green light. Also, one wonders whether knowledgeable legal counsel was involved prior to the termination. True, marijuana can be a complicated issue (a lawyer might go either way), but that is less true with respect to failure to engage in the interactive process.
10. This case also stands for the proposition that defending on undue hardship grounds, of which there can be many different things that might constitute such an undue hardship, may work for summary judgment or trial, but is not likely to prevail on a motion to dismiss.

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