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Accommodation of a disability

Disability discrimination: An employee’s use of medical marijuana is allowed in Massachusetts, with some restrictions

Massachusetts voters approved a referendum allowing for the use of medical marijuana. The Supreme Judicial Court recently ruled that an employer who unilaterally fires an employee who is taking medical marijuana may face a claim for illegal disability discrimination.

In Barbuto v. Advantage Sales and Marketing, the employee accepted a job doing promotional work.  She told the hiring manager that she took medical marijuana to manage symptoms associated with Crohn’s disease, a debilitating gastrointestinal condition. The condition interferes with her ability to maintain her appetite and weight. The employee told the hiring manager that she had a written certification from her doctor. The employee used small doses 2-3 times a week after work hours. When the employee failed the drug test, she was fired.

The Court ruled that the employer erred when it fired the employee without first having an interactive dialogue with her about an accommodation of her disability. The Court declared that an employer’s automatic decision that an accommodation for medical marijuana is unreasonable due to the federal law prohibition is not “respectful of the recognition of Massachusetts voters … that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

The employer owes the employee a duty to participate in an interactive process to explore whether: (1) there is an alternative, equally effective medication that the employee could use; (2) the use of medical marijuana will impair the employee’s performance or pose an unacceptably significant risk to the public, the employee, or co-workers; or (3) the employee’s use of medical marijuana wold violate an employer’s contractual or statutory obligations and thereby jeopardize its business. For example, transportation companies are regulated by the federal Department of Transportation which  prohibits any safety-sensitive employee from using marijuana. Federal government contractors and the recipients of federal grants are obligated to company with the federal law known as the Drug Free Workplace Act.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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