Fired Employee May Proceed on Reasonable Accommodation Claim based on Medical Marijuana Use

Medical marijuana remains in local news as the first Hawaii dispensaries and testing labs scramble to open.  In what may perhaps be an indication of what is to come as the use of marijuana becomes more mainstream, the Massachusetts Supreme Court recently became the first state Supreme Court to hold that an employer may be obligated to reasonably accommodate an employee’s off-work use of medical marijuana.  While this case is not binding on Hawaii employers, it nonetheless provides useful insights.
In Barbuto v. Advantage Sales and Marketing, LLC, plaintiff Christina Barbuto was offered a position with defendant Advantage Sales and Marketing (ASM).  She was a qualifying medical marijuana patient under Massachusetts Medical Marijuana law, and used her prescription to treat her Crohn’s Disease.  She informed her new supervisor of her off-duty medical use of marijuana when he told her that she would be required to take a drug test.  She took the test, it came back positive, and her employment was terminated.  The HR representative who discharged Barbuto explained that the company was following federal law (which prohibits possession or use of marijuana for any reason) in its decision to terminate her.
Barbuto filed suit alleging, among other things, that ASM discriminated against her based on disability by failing to accommodate her off-duty use of medical marijuana to treat Crohn’s disease.  The defendants filed a motion to dismiss the case, arguing that a request to continue using a drug that is illegal under federal law is an unreasonable accommodation request.  The lower court granted defendants’ motion, and Barbuto appealed that decision.
On review, the Massachusetts Supreme Court disagreed with the lower court’s ruling.  In reversing the decision, the court held that Barbuto adequately stated a claim for relief under the discrimination statute, and that dismissal of her claim was improper because her requested accommodation was facially reasonable. The court noted that Barbuto met the requirements to be classified as a qualifying medical marijuana patient under state law, and that such law also protected qualifying medical marijuana users from being penalized in any manner or denied any right or privilege related to their use of medical marijuana.  While Massachusetts’ medical marijuana law does not require employers to allow employees to use medical marijuana at work, the court reasoned that such language suggests that allowing an employee to engage in offsite use of medical marijuana may be a form of reasonable accommodation that an employer could be required to provide.  Further, the fact that the use of marijuana is illegal under federal law does not make it facially unreasonable to request to use marijuana off-duty as an accommodation.  This is because the only person at risk for prosecution under federal law is Barbuto, and Massachusetts voters determined that marijuana “has an accepted medical use for some patients suffering from debilitating medical conditions.”
At the very least, the court noted, ASM was required to engage in an interactive process with Barbuto to determine whether an accommodation was available to enable her to perform the essential functions of her position.  For these reasons, the court reversed the dismissal of this claim and remanded the case for further action.
While Hawaii courts have not yet confronted the issue of whether an employer may be required to provide an accommodation based on medical marijuana use, it should be noted that courts in Oregon, California, Montana, and Washington have rejected public policy tort claims and disability discrimination claims based on medical marijuana use.