The Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales & Marketing, LLC has ruled that handicapped employees, who have been prescribed medical marijuana, may be entitled to a reasonable accommodation and employers, at the very least, have an obligation to engage such employees in an interactive process to assist in making this determination. The Court’s ruling is significant because it questions the validity of zero-tolerance drug policies as applied to medical marijuana users in Massachusetts.
When the plaintiff in Barbuto was required to submit to a mandatory drug test, she told her supervisor she would test positive for marijuana. She explained that she suffers from Crohn’s disease and provided documentation from her physician. She took the drug test, completed her first day of work, and was terminated after her test came back positive for marijuana. Plaintiff claims the employer told her its decision was based on federal, law.
According to the Court, “[u]nder 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.” The Court further explained that:
[W]here an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it. If the employer, however, had a drug policy prohibiting the use of such medication, even where lawfully prescribed by a physician, the employer would have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy.
The Court’s holding does not mean employers are required to allow on-site use of marijuana in the workplace. It means employers may have to make reasonable accommodations for those who engage in off-site use of legally prescribed medical marijuana and/or make exceptions to their drug testing policies.
Coverage: All employers with employees in Massachusetts who perform pre- and post-employment drug testing.
Effective: The decision was issued on July 17, 2017.
Action Required: The administration of your drug-testing program will be impacted by the Court’s ruling. As such, you should take the time to review your drug-testing policies and practices, familiarize yourself with the ruling, and contact your Human Resources Business Partner with any questions. If you participate in the ADP TotalSource Drug Free Workplace Program, please contact our ADP TotalSource Drug Free Workplace Administrator for additional guidance.