On July 17, 2017, the Supreme Judicial Court of Massachusetts issued a controversial decision that makes employment law much more hazy in the Bay State. Moreover, Barbuto v. Advantage Sales & Marketing may have implications in other states where medical marijuana has been legalized. Until this decision we could say with confidence that—notwithstanding liberalization of marijuana regulation at the state level—employers could continue to enforce zero tolerance drug policies because state courts considering similar issues had universally recognized that the federal prohibition on marijuana prevails over state enactments.
Illustrating the point, the Colorado Supreme Court issued a well-reasoned opinion in 2015, authored by Judge Allison Eid—who has been nominated to fill Neil Gorsuch’s vacant seat on the Tenth Circuit Federal Court of Appeals. In Coates v. Dish Network, the Colorado Supreme Court held that, regardless of state legalization efforts, employers were under no obligation to make accommodations for employees using medical marijuana. But in Barbuto the highest court in Massachusetts broke ranks, finding that employers must allow reasonable accommodations for employees using marijuana with a valid medical marijuana license. The opinion does not suggest that employers must permit employees to come to work high, but instead suggests that employers must accommodate off-duty use. Unfortunately, the difficulty is that there is no way in practice for employers to know whether an employee has marijuana in his or her system. NFIB Small Business Legal Center filed a friend of the court brief, emphasizing this point.
The decision makes it much more difficult for Massachusetts employers to maintain zero tolerance drug policies. Accordingly, employers in Massachusetts should seek out legal counsel prior to taking any adverse action against an employee or applicant who tests positive for marijuana use if he or she has a medical marijuana card. Employers should also consult with an attorney about modifying drug free workplace policies.
NFIB will continue to argue that, pursuant to federal law, employers have a right to enforce zero tolerance drug policies—and that such policies are necessary for a safe work environment. But unless and until the Supreme Court should take-up that issue, employers in states with medical marijuana licensing should be consulting with their attorneys at to how they should approach these increasingly delicate issues.
