This article is Part One of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series
In Cristina Barbuto vs. Advantage Sales and Marketing, LLC, & another, SJC-12226 (July 17, 2017), slip opinion[1], the Supreme Judicial Court of the Commonwealth of Massachusetts was confronted with Plaintiff Cristina Barbuto’s (hereinafter, “Plaintiff” or “Ms. Barbuto”) direct appeal of the Superior Court’s Decision to grant, in part, Defendant Advantage Sales and Marketing, LLC’s (hereinafter, “ASM”) and Defendant Joanna Meredith Villaruz’s (hereinafter, “Ms. Villaruz”) (collectively, “Defendants”), Motion to Dismiss her Complaint. The Complaint flowed from Plaintiff’s termination from her employment with ASM as a result of her testing positive for marijuana in connection with a mandatory drug test. See id. at 4.
Ms. Barbuto was offered and accepted a job from ASM in the late summer of 2014. See id. at 3. After she accepted the position, an ASM representative communicated to Ms. Barbuto that she would be required to take a mandatory drug test. See id. Ms. Barbuto advised the ASM employee that she would test positive for marijuana. See id. She further explained that she suffered from Crohn’s disease and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes, which rendered her a qualifying medical marijuana patient under Massachusetts law. See id. Ms. Barbuto advised the ASM employee that she did not use marijuana daily and agreed that she would not consume it before work or at work. See Barbuto, supra, slip opinion at 3.
Thereafter, the ASM representative advised her that such use would not preclude her employment at ASM, alerted her that this would be confirmed with ASM and later provided her with confirmation that her lawful medical use of marijuana would not be an issue with the company. See id. at 4
On September 5, 2014, Ms. Barbuto submitted a urine sample for the mandatory drug test. On September 11th, she participated in an ASM training program wherein she received a uniform and her job assignment, and she later completed her first day of work—without use of marijuana before or during her shift. See id. Later that evening, Ms. Villaruz, ASM’s Human Resources representative, informed Ms. Barbuto that she was being terminated as a result of testing positive for marijuana and also advised Plaintiff that ASM did not care if Ms. Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.” See id.
After her termination, Plaintiff filed a verified charge of discrimination against Defendants with the Massachusetts Commission Against Discrimination (“MCAD”), which was later withdrawn prior to her filing of a Complaint in Superior Court. See id. at 4-5. The Complaint alleged six (6) distinct Counts: (1) handicap discrimination, in violation of G. L. c. 151B, § 4 (16); (2) interference with her right to be protected from handicap discrimination, in violation of G. L. c. 151B, § 4 (4A); (3) aiding and abetting ASM in committing handicap discrimination, in violation of G. L. c. 151B, § 4 (5); (4) invasion of privacy, in violation of G. L. c. 214, § 1B;(5) denial of the "right or privilege" to use marijuana lawfully as a registered patient to treat a debilitating medical condition, in violation of the Medical Marijuana Act; and (6) violation of public policy by terminating the plaintiff for lawfully using marijuana for medicinal purposes. See id. at 5. The second and third claims were brought against Villacruz alone; the rest were brought against both ASM and Villaruz. See Barbuto, supra, slip opinion at 5.
In overturning the Superior Court’s Decision, the Supreme Judicial Court began by reviewing the Massachusetts’ Medical Marijuana Act (“MMMA”). See id. at 6. Under the MMMA, a "qualifying patient" is defined as "a person who has been diagnosed by a licensed physician as having a debilitating medical condition." Crohn's disease is expressly included within the definition of a "debilitating medical condition." St. 2012, c. 369, §§ 2 (K), (C). MMMA protects a qualifying patient from "arrest or prosecution, or civil penalty, for the medical use of marijuana" provided the patient: "(a) [p]ossesses no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply; and (b) [p]resents his or her registration card to any law enforcement official who questions the patient . . . regarding use of marijuana." St. 2012, c. 369, § 4. The act also provides, "Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions." Id.
After summarizing the protections afforded to qualifying patients under the MMMA, the Court delineated the statutory protections designed to eliminate discriminatory practices in connection with handicap discrimination. See id. at 8. Under G. L. c. 151B, § 4 (16), it is an "unlawful practice . . . [f]or any employer . . . to dismiss from employment or refuse to hire . . . , because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business." The Court further opined that substantial deference was provided to the MCAD’s guidelines interpreting G. L. c. 151B, despite the Court’s acknowledgement that the guidelines do not carry the force of law. See id.
The Supreme Judicial Court then reviewed the statutory definition of “handicap” found in G. L. c. 151B, § 1 (17, which is defined as follows: "(a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment." Next, the Court reviewed the definition of “handicapped person,” as well as “qualified handicapped person.” G. L. c. 151B, § 1 (19) ("any person who has a handicap"); § 1 (16 ("a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to the handicap"). After reviewing the foregoing statutory definitions, the Court noted that Plaintiff’s Complaint contained allegations that she was a handicapped person because she suffers from Crohn’s disease and that she was a qualified handicapped person because she is capable of performing the essential functions of her job with a reasonable accommodation to her handicap; namely, ASM’s waiver of their policy barring anyone from employment who tests positive for marijuana in order that she be able to continue to use medical marijuana as prescribed by her doctor. See id. at 9
Thus, the Supreme Judicial Court held that Ms. Barbuto had sufficiently stated a claim for handicap discrimination in violation of § 4 (16). See Barbuto, supra, slip opinion at 9. The Court emphasized that Ms. Barbuto’s illness, Crohn’s disease, is characterized as a “debilitating medical condition” under the MMMA and that she had alleged that her condition, along with irritable bowel syndrome, resulted in a physical impairment that substantially limited one or more major life activities; namely her ability to eat and work (the Court inferred the major life activities at issue as the complaint was not express in that regard). See id. at 10.
Defendants attempted to argue that Ms. Barbuto’s claim must fail as the only reasonable accommodation she sought was the continued use of medical marijuana, which constitutes a federal crime. See id. As such, they argued that such an accommodation was facially unreasonable. See id. The Court dispensed with the first argument by explaining that the MMMA makes the use of medical marijuana lawful for qualifying patients—the same as any legally prescribed medication. See id. at 11-12. The result being that if an employee’s physician is of the opinion that medical marijuana is the most effective treatment and that alternative medication would be less effective, a waiver of an employer’s drug policy would be a facially reasonable accommodation. See id. at 14. In conclusion the Court highlighted that the MMMA itself declares that patients shall not be denied a right or privilege based on their use of medical marijuana and that a handicapped employee in Massachusetts has a statutory “right or privilege” to reasonable accommodation under G. L. c. 151B, § 4. See Barbuto, supra, slip opinion at 14. However, the Court was careful to acknowledge that the MMMA does not provide “any accommodation for on-site medical use of marijuana in any place of employment.” See id. at 15 (internal citation omitted).
With regards to Defendants’ second argument; they contended that, even if Ms. Barbuto were a "qualified handicapped person," she was terminated because she failed a drug test that all employees are required to pass, not because of her handicap. See id. at 10. The Supreme Judicial Court cut through this argument emphatically by expressly stating that the “law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap.” Id. at 18. To underscore the absurdity of this argument, the Court stated that by Defendants’ logic they could bar the use of insulin by employees in accordance with a company policy, which would not constitute discrimination against diabetics because of their handicap, but would simply be implementing a company policy prohibiting the use of insulin. See id. The Court found it manifest that the termination of an employee for violating such a policy denies a handicapped person the opportunity of a reasonable accommodation—the sine qua non of handicap discrimination. See id. at 18-19.
Despite the Supreme Judicial Court’s ruling that an employee’s use of medical marijuana under these circumstances is not facially unreasonable as an accommodation for her handicap and that the Superior Court’s dismissal of the counts alleging handicap discrimination must be reversed, the Court was careful to note that, ultimately, the employee may not be successful on the merits. See Barbuto, supra, slip opinion at 19. The Court clarified that Defendants, at summary judgment or trial, may satisfy their burden to demonstrate that Plaintiff’s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on Defendant’s business practices. See id. The Court proffered an examples of undue hardship—the employer proving that medical marijuana impairs the employees job performance or by demonstrating that a significant safety risk to the public, the employee, or her fellow employees arises from the employee’s use of medical marijuana. See id. (internal citation omitted). The Court also described the situation wherein an employer’s ability to conduct its business was threatened as a result of an inability to satisfy contractual or statutory obligations, which originated from the employee’s use of medical marijuana. See id. at 20.
After determining that dismissal of Counts 1, 2, and 3 (those sounding in handicap discrimination) would be reversed, the Court began it analysis of whether the MMMA created an implied private cause of action that would allow Plaintiff to seek damages for a violation of the MMMA. See id. at 21-22. In doing so, the Court reviewed similar medical marijuana legislation, in Rhode Island and Maine, which pre-dated the MMMA. See id. at 22. The Court recognized that Rhode Island and Maine’s medical marijuana acts included express language prohibiting employers from taking adverse employment action against an employee for the lawful use of medical marijuana—the MMMA does not. See Barbuto, supra, slip opinion at 22 (internal citation omitted). Accordingly, the Court endeavored to determine whether the MMMA created an implied private cause of action by attempting to ascertain legislative intent by analyzing the legislative history of the act. See id. at 23. The Court found no evidence that the voters understood that the passage of the act would create a private cause of action, but also exclaimed that the Court must also consider whether the lack of such an action would leave the statute ineffectual and, thus, hinder the voter’s intent. See id. at 23-24.
The Supreme Judicial Court held that the existence of comparable causes of action, handicap discrimination, made it clear that there was no need to find an implied private cause of action derived from the MMMA. See id. at 24 (internal citation omitted). It also stressed that fact that the drafters of the MMMA specifically prohibited “on-site” medical marijuana use as an “accommodation” and that the drafters included language that barred the denial of a “right or privilege” for marijuana use, which the Court found suggested a preexisting right or privilege—not one flowing from the MMMA. See id. at 24-25. The Court found that the foregoing statutory clues bolstered its holding that the drafters were mindful that a cause of action for handicap discrimination would protect qualifying patients from adverse actions by employers. See id. After determining that the MMMA did not support an implied cause of action, the Court confronted Count 6, asserting that Plaintiff’s termination was wrongful and in violation of public policy. See Barbuto, supra, slip opinion at 25-26. The Court summarized the theory as an exception to the general rule regarding at-will employment and one that only arose when a termination violated a clearly imprinted public policy. See id. (internal citation omitted). After reaffirming that the public policy exception was consistently construed narrowly by the Court, it held that it would not create such a cause of action for essentially the same reasons as it refused to find an implied right in the MMMA. See id. Simply stated, there was no reason to create such a right as qualifying patients were already protected by the statutory scheme in place to protect employees from handicap discrimination. See id.
[1] Barbuto v. Advantage Sales & Mktg., LLC, No. SJC-12226, 2017 WL 3015716 (Mass. July 17, 2017)