KingSpry Massachusetts Medical Marijuana Case

Medical Marijuana Employment Case in Massachusetts Could Foreshadow Potential Claims to Come for Pennsylvania Employers

Photo of Timothy E. Gilsbach

Posted on July 24th, 2017
by Timothy E. Gilsbach

In a fascinating case out of Massachusetts, it was found that an employee could sue her former employer for disability discrimination due to the failure of the employer to create an accommodation that would exempt her from drug testing for her use of medical marijuana outside of the work day.

The case, which appears to be the first the country to allow such a claim to proceed, notes the growing acceptance nationwide of medical marijuana and could be an indication of things to come here in Pennsylvania.

In the case of Barbuto v. Advantage Sales and Marketing, Inc., the plaintiff suffered from Crohn’s disease, used medical marijuana to treat the same, and was permitted to do so under Massachusetts’s Medical Marijuana Law.  The plaintiff was hired but was told she would have to take a drug test in her job.  The plaintiff told the employer she took medical marijuana, and although she did not take it before work or at work, would likely test positive on the drug test.  The employer told her this would not be a problem, but still required her to take the drug test.  After starting work, the Plaintiff was fired for a positive drug test and told, when she again raised the use of medical marijuana as the reason for the positive drug test, “we follow federal law, not state law.”  After being fired, the plaintiff brought suit in state court  claiming disability discrimination and discharge in violation of Massachusetts’s Medical Marijuana Law. The Barbuto case has two important lessons for employers.

First, the Barbuto Court concluded that the plaintiff alleges a valid claim of disability discrimination under Massachusetts law.  The Court explained that the plaintiff clearly has a disabling condition and that her request for an accommodation, in the form of a waiver of the company’s policy that barred employment for a positive drug test for marijuana, was not facially unreasonable.  As a result, the employer was required to either exempt the employee from this policy or engage in the interactive process about the use of this medication and/or other accommodations to address this employee’s disability.

However, while the Court found that the employee alleged a valid discrimination claim, it was clear that the plaintiff might not carry the day and that the employer might be entitled to say no to her request for a medical marijuana accommodation. The Court noted the employer would need to establish that the requested accommodation would create an undue hardship on the employer, which could be shown by showing that the use of the marijuana would create an “unacceptably significant” safety risk or it would violate the employer’s contractual or statutory obligations, such as the federal Drug Free Workplace Act.  As a result, while the employee alleged enough to establish employment discrimination, there are number of defenses available for the employer.

Second, the Barbuto Court concluded that under Massachusetts’ law, there is no private cause of action (the right of a former employee to sue) under its Medical Marijuana Law for firing an employee simply because they are using medical marijuana.  The Barbuto Court reached this conclusion on the basis that Massachusetts’ law, unlike other states, does not include a provision that protects medical marijuana users from adverse employment action and, as a result, it was not intended to include a private right to sue for violation of the law.

On the other hand, notably, Pennsylvania’s Medical Marijuana Law does include a provision that explicitly protects medical marijuana users from adverse employment actions and, at least arguably, an alleged violation of Pennsylvania’s non-discrimination provision may include a right to sue an employer directly on the basis of violation of the law.  While this may be reading the tea leaves on this issue, employers should still be aware this may be where the law is going.

As a result, given the fluid nature of the law in this area, employers in Pennsylvania should be very cautious in how they address employees who are using medical marijuana to avoid potential claims of disability discrimination under state law or direct claims under Pennsylvania’s Medical Marijuana Law.


The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice GroupJeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.