Labor & Employment
Fall 2018

Massachusetts “High” Court Finds Wrongful Termination in Medical Marijuana Case

On July 17, 2017, the Massachusetts Supreme Court held that an employee who was terminated after she tested positive for marijuana could sue her employer for disability discrimination. In the case of Barbuto v. Advantage Sales and Marketing, LLC, an employee brought suit against her employer for disability discrimination. At the outset of her employment, the plaintiff was required to take a mandatory drug test and advised the employer that she uses medical marijuana to treat her Crohn’s disease, for which she held a valid prescription pursuant to Massachusetts law. The plaintiff alleged that she did not use marijuana on a daily basis, nor did she use marijuana before or during work. The plaintiff worked one day before being terminated for testing positive for marijuana. The representative of the employer who terminated the plaintiff advised that the employer follows federal law regarding marijuana use.

The employer argued before the Massachusetts Supreme Court that because marijuana is illegal under federal law, there is no obligation for an employer to accommodate an employee’s use of medical marijuana. The employer relied on similar cases throughout the country that support this proposition, which have consistently held that an accommodation for medical marijuana is not required to be provided by the employer. Courts in states including California, New Mexico, Oregon, Washington, Montana, and Colorado have all held that there is no duty for private employers to accommodate the use of medical marijuana, and that employers may terminate employees for positive drug testing.

In a decision that is the first to go against the tide of national cases finding that accommodation for medical marijuana is not required, the Court in Barbuto found that an employee could sue an employer for disability discrimination for failure to accommodate medical marijuana use, and that an accommodation for medical marijuana use is not facially unreasonable. The Court held that because the plaintiff’s physician opined that marijuana is the most effective treatment for her condition, and that any other permissible medication would have been less effective, an exception to the employer’s drug policy to permit medical marijuana use was a facially reasonable accommodation. The Court also cited the text of the Massachusetts medical marijuana act, which declares that patients shall not be denied “any right or privilege” on the basis of medical marijuana use. Accordingly, the Court determined that if accommodation of medical marijuana was treated as a per se unreasonable accommodation, the employee would effectively be denied the “right or privilege” to reasonable accommodation for medical marijuana use.

The Court made clear that use of marijuana before or during work continues to be impermissible. Furthermore, the Court was also careful to note that the plaintiff may not ultimately prevail on the merits of her disability discrimination case, and remanded this matter to the Superior Court for further consideration of the issue of whether accommodating the plaintiff’s medical marijuana use would cause an undue hardship on the employer’s business.

This case is significant because it is the first time a state’s high court has ruled that employees who use medical marijuana may have protection from termination from their employment. This decision is a marked departure from other cases on this issue to date, which have all relied on marijuana’s status as a Schedule I controlled substance under federal law to hold that employees who use medical marijuana are not protected from adverse employment actions. Maryland courts have not weighed in on this issue, and there are no explicit employment protections for medical marijuana use in Maryland’s medical marijuana statute. As this case is so recent, it is unclear whether the decision of the Massachusetts Supreme Court represents an aberration from the rest of the country on this issue or whether this case will signal a new trend in medical marijuana litigation

For more information on this article, contact Sarah Lemmert at