State Law Wins (Again) Over Federal Law When Firing Someone for the Legal Use of Medical Marijuana

We recently discussed Noffsinger v. SSC Niantic Operating Company LLC, 2017 WL 3401260, wherein the Connecticut Supreme Court analyzed whether federal law precluded enforcement of a Connecticut law that prohibited employers from firing or refusing to hire someone who used marijuana for medicinal purposes. The Connecticut Supreme Court held that any person who used marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refused to employ them for this reason.

The issue continues to come up in various forms in a number of states and was recently addressed by the Massachusetts Supreme Court. As many people know, in 2012, Massachusetts approved a medical marijuana act whose stated purpose is “that there should be no punishment under state law for qualifying patients … for the medical use of marijuana.” St. 2012, c. 369, § 1.

In Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (2017), the court addressed the issue of whether a qualifying patient who was terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. The Massachusetts Supreme Court concluded that a plaintiff may seek a remedy through claims of handicap discrimination in violation of Massachusetts General Law chapter 151B.

The plaintiff in this action was offered an entry-level position with the defendant and accepted the offer. She was informed she would be required to take a mandatory drug test and she informed the company that she would test positive for marijuana. The plaintiff suffered from Crohn’s disease and provided a written certification from a doctor showing that she was a qualifying medical marijuana patient under Massachusetts law. She did not use marijuana daily and did not consume it before work or at work. The plaintiff was informed that her lawful medical use of marijuana would not be an issue with the company.

She submitted a urine sample for testing and reported to work a week later. Following her first full day she was contacted by the company and informed that she was terminated for testing positive for marijuana. She was allegedly informed by the defendant that it was irrelevant if she had a valid prescription for marijuana under Massachusetts’ state law because “we follow federal law, not state law.”

The plaintiff brought suit under Massachusetts Medical Marijuana Act. She alleged she was a qualifying patient under the act and was protected from “civil penalty, for the medical use of marijuana” provided she met a number of requirements delineated with law. St. 2012, chapter 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.

The plaintiff alleged that she was improperly dismissed from her employment due to handicap discrimination. Under Massachusetts General Law chapter 151B, § 4 (16), it is an “unlawful practice … for any employer … to dismiss from employment or refuse to hire …, because of a 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 plaintiff alleged that she was a “handicapped person” because she suffers from Crohn’s disease and that she was a “qualified handicapped person” because she was capable of performing the essential functions of her job with a reasonable accommodation to her handicap; that is, with a waiver of defendant’s policy barring anyone from employment who tested positive for marijuana.

The defendants argued that the plaintiff failed to state a claim of handicap discrimination and contended that she had not adequately alleged that she is a “qualified handicapped person” because the only accommodation she sought — her continued use of medical marijuana — is a Federal crime, and therefore is facially unreasonable. (internal citations omitted). Second, they contended that, even if she 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. Get the list of allowed drugs from

The court disagreed with the defendant’s arguments. 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. 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.

The court’s decision overturning the motion to dismiss was not a total victory. The court’s decision on the motion to dismiss did not necessarily mean that the plaintiff would prevail in proving handicap discrimination. Whether the employer met its burden of proving that the requested accommodation would impose an undue hardship on the employer’s business is an issue that may be resolved through a motion for summary judgment or at trial. It remains to be seen what arguments the defendant will raise in support of their position, but this decision once again reiterates the state courts’ refusal to deny a plaintiff access to the justice system due to their lawful use of medical marijuana.

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