Marijuana in the Workplace

While medical marijuana has been available to Massachusetts patients for some time, the Commonwealth has recently joined a growing number of states in decriminalizing marijuana sales and use under state law. See Mass. Gen. Laws Ch.94G §7. The exact words of the statute are informative:

“(a) Notwithstanding any other general or special law to the contrary, except as otherwise provided in this chapter, a person 21 years of age or older shall not be arrested, prosecuted, penalized, sanctioned or disqualified under the laws of the commonwealth in any manner, or denied any right or privilege and shall not be subject to seizure or forfeiture of assets for: (1) possessing, using, purchasing, processing or manufacturing 1 ounce or less of marijuana, except that not more than 5 grams of marijuana may be in the form of marijuana concentrate;"

On November 20th – one week ago today – Massachusetts’ first two recreational, adult-use marijuana dispensaries began sales to consumers in Leicester and Northampton, Massachusetts. According to news reports, roughly 3,000 people had purchased legal marijuana products from these two dispensaries by the close of their first day of business.¹

However, state laws concerning the impact of marijuana use on employment issues remain unsettled throughout the country – even in states like Massachusetts where both medical and recreational use has been legalized under state law.²

While there is little doubt that Massachusetts employers may lawfully prohibit marijuana use in the workplace, just as they can prohibit alcohol or tobacco use, employers and employees are both facing important questions: Is legal recreational marijuana use outside the workplace grounds for employee disciplinary action, including termination? Would termination be considered a sanction or disqualification, or would it be considered the denial of a right or privilege each of which is prohibited by the statute?

Unfortunately, there are no clear answers to this question yet. However, the Massachusetts Supreme Judicial Court’s recent decision addressing medical marijuana use by an employee does provide some important insight into potential legal arguments – and the Court’s thought process – when it comes to evaluating the impact of an employee’s legal use of recreational marijuana outside the workplace.

In Barbuto v. Advantage Sales and Marketing, LLC, a Massachusetts employee was terminated from her employment following a positive urine drug screen for marijuana. She had previously disclosed to her employer that she was a registered Massachusetts medical marijuana patient, that she had been prescribed marijuana to treat a debilitating condition, that she did not use it daily, and that she would not use it before work or at work. While her supervisor told Barbuto that her medical use should not be a problem, she was later terminated by the employer’s HR representative following the positive marijuana drug test. Barbuto, 477 Mass. 456, 458 (2017).

Following her termination, Barbuto filed suit asserting six claims, including several claims based on “handicap discrimination” under M.G.L. Ch. 151B; a claim based on the denial of her “right or privilege” to use marijuana lawfully in violation of the medical marijuana act; and a claim of wrongful termination in violation of Massachusetts public policy allowing lawful use of marijuana for medical purposes.  The trial court dismissed Barbuto’s Complaint as to each of these claims and Barbuto appealed.

In addressing Barbuto’s medical use of marijuana, the Supreme Judicial Court held that that her claims based on “handicap discrimination” should not have been dismissed because Barbuto’s lawful medical marijuana use was not a “facially unreasonable accommodation” for Barbuto’s handicap under M.G.L. Ch.151B. The Court went on to explain that Barbuto’s employer had a duty 1) to engage in an interactive process with Barbuto to determine whether there was another reasonable accommodation for her handicap other than marijuana; and if not, 2) demonstrate that Barbuto’s requested accommodation of lawful medical marijuana use was unreasonable because it presented an undue hardship for the employer’s business.

While the Barbuto decision remains instructive for both employers and employees facing issues concerning medical marijuana use, the Court’s analysis of Barbuto’s other claims also provides important insights as to the current state of Massachusetts law concerning an employee’s recreational marijuana use.

As noted, the Court upheld the lower court’s dismissal of Barbuto’s claim that she was denied her “right or privilege” under the medical marijuana act, as well as her claim that she had been wrongfully terminated in violation of Massachusetts public policy allowing lawful medical use of marijuana.

But, as to Barbuto’s claimed violation of her rights under the medical marijuana act, the Court found that the Act provided no implied private cause of action. It reasoned that “recognizing an implied private right of action under the medical marijuana act for an employee could conflict with the employee’s right of action under our antidiscrimination law, G.L. 151B...We will not imply a separate private cause of action for aggrieved employees under the medical marijuana act, where such employees are already provided a remedy under our discrimination law, and where doing so would create potential confusion.”

Like Massachusetts’ medical marijuana act, the Commonwealth’s recreational marijuana statutes do not set forth any specific private cause of action that would expressly allow an employee to sue for a violation of his or her right to use recreational marijuana while off-duty and outside of the workplace. Given that no such implied right was found by the Court in Barbuto, we cannot opine that the Court would reach a different result if faced with such an argument as to our recreational use laws.

However, there is a potentially relevant distinction between a wrongful termination claim relating to the use of medical marijuana and recreational use that bears consideration here: The Court in Barbuto based its decision not to recognize the wrongful termination claim, in part, on the fact that Barbuto had an existing remedy under Massachusetts’ handicap discrimination laws – a remedy that does not exist for someone engaging in off-duty, non-medical use of marijuana. In the absence of any other legal remedy for a violation of rights, Courts are sometimes persuaded to recognize a separate cause of action as a matter of equity.

Take Aways:

1. Employers need to comply with the handicap discrimination act regarding the use of medical marijuana.

2. Although there are no clear answers to issues arising out of the recreational use of marijuana, if an employee is terminated for the legal use of marijuana outside of the workplace, that employee may be able to assert a wrongful termination claim. We suspect that the Courts will decide these cases based on the totality of the circumstances surrounding the termination. The issues that will likely arise include:

·        whether use that would not impact safety or job performance will be lawful grounds for termination;

·        the nature of the employee’s job and what impact marijuana use could have on the employee’s safety and the safety of others;

·        how the employer learned of the employee’s marijuana use, and if it was a drug test, was the method a reliable indicator of whether and how much before work the use occurred and whether the use was likely to impact performance or safety;

·        whether there was a discernible impact on job performance unrelated to safety;

·        whether the company had a stated, written policy about zero tolerance for marijuana use before or after work;

·        whether that policy was reasonable under the circumstances;

·        whether the company policy was unreasonable on its face;

·        whether the stated reason for the termination was pretextual;

·        whether the employee was an employee at will or under contract;

·        whether the policy was being enforced in a discriminatory or arbitrary way.

3. Employees should carefully consider the risks of non-medical use of marijuana given the current unsettled state of the law. If an employee is eligible for registration as a medical user, completing the registration process should be seriously considered rather than relying on access to recreational marijuana for what may be a medical use. An employee using medical marijuana is afforded greater protection than a person using marijuana for recreation.

There are two larger issues which are even more unique:

The first is whether the use of marijuana drug tests to terminate employment is a de facto nullification of an employed person’s now legal right to use marijuana. The active ingredient may show up in a drug test long after it was ingested and long after it has an impact on a person’s behavior. If an employer uses a positive drug test that does not indicate how recently it was ingested or some other information that bears on the impact on a person’s behavior, upholding such a termination arguably deprives the person of the right to use marijuana as a practical matter.

Second, if an employer is doing business with or for or under a license with the Federal government or receives any Federal funding or subsidy, that employer may have a more substantial and enforceable justification for termination for any reason at any time since marijuana use is a violation of federal law. While this issue is beyond the scope of the current newsletter, it is important for employers to take note of this issue if it may apply to their business.

There is no doubt that marijuana use will increase. But it will be quite a while before all the legal issues are defined and resolved.

Whether you are an employer or an employee, we recommend that you seriously consider these issues before a situation arises in your workplace or impacts your employment.

WE URGE YOU TO BE PROACTIVE IN THIS UNCERTAIN AREA OF THE LAW.

As always, we are here to assist you in addressing your particular situation.

Bob Feingold

Heather Bonnet-Hébert

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1 Recreational marijuana sales begin in Massachusetts, first on the East Coast,” Boston Globe, November 20, 2018, available at https://www.bostonglobe.com/news/marijuana/2018/11/20/first-recreational-pot-shops-mass-open-today/vZ7GY3OpSqEPCV6sD5zKRP/story.html (last visited Nov. 25, 2018).

2 Part of this legal uncertainty stems from the fact that marijuana remains a Schedule I controlled substance – meaning its possession is a crime under federal law – regardless of whether it is prescribed by a physician or otherwise legal under state law. See Controlled Substances Act, 21 U.S.C. §812(b)(1), (c).