Employers May Have Duty to Accommodate Employee's Medical Marijuana Use

The Massachusetts Supreme Judicial Court issued an important which may have national consequences with respect to the use of medical marijuana.  The court held that medical marijuana users may bring disability discrimination claims against their employers for failing to reasonably accommodate after-work medical marijuana use. The decision in Barbuto v.Advantage Sales and Marketing,____N.E. 3d____(July 17, 2017) makes clear that Massachusetts employers can no longer rely on federal law prohibiting marijuana use and possession in enforcing “zero tolerance” drug policies. As the court explained:

Under Massachusetts law, as a result of the act, 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. Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under G. L. c. 151B, § 4 (16), not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.