Employer Alert: Massachusetts SJC Ruling on Employee Medical Marijuana Use

July 19, 2017

By: Kristen M. Whittle and C. Alexander Chiulli

The Massachusetts Supreme Judicial Court has ruled that employers may not terminate employees for using medical marijuana during non-working hours. In Cristina Barbuto vs. Advantage Sales and Marketing, LLC, et al., the SJC relied on G. L. c. 151B, Massachusetts’ handicap anti-discrimination statute, in its ruling. Notably, the Court held that Massachusetts’ medical marijuana statute does not provide a private right of action. The decision in this regard differs from the Rhode Island Superior Court’s recent ruling in Callaghan v. Darlington Fabrics Corporation, et al., which ruled that employees may seek damages under Rhode Island’s medical marijuana statute. Both cases involved plaintiffs who were unable to successfully pass employment-related drug tests due to their medical use of marijuana.

The main takeaway to these recent rulings is that employers in Massachusetts and Rhode Island must accommodate employees’ medical use of marijuana under the applicable laws in each state— Massachusetts’ Act for the Humanitarian Medical Use of Marijuana and Rhode Island’s Hawkins-Slater Medical Marijuana Act. However, employers are not required to allow employees to use marijuana on the job or to otherwise report to work impaired. Employers should also remain aware that Federal law prohibits the possession of marijuana, even in states where it has been lawfully prescribed by a physician for medical use.

For more information or if you have questions, please contact Kristen Whittle at kwhittle@bartongilman.com or Alex Chiulli at achiulli@bartongilman.com, or by phone at 401.273.7171.

Kristen M. Whittle is an experienced civil litigator who focuses her practice on employment law, insurance coverage and bad faith litigation, and products liability litigation. She actively practices in the courts of Massachusetts, Rhode Island, and Connecticut. Kristen also regularly advises employers on all aspects of the employment relationship—from hiring through separation—and she frequently reviews and revises personnel policies and handbooks. Kristen has recently been named a 2017 Forty Under 40 honoree by the Providence Business News.

C. Alexander Chiulli advises businesses, individuals, non-profit organizations and educational institutions on employment, contract, general liability, and corporate matters, as well as intellectual property, Internet law, privacy and information law, entrepreneurship, and First Amendment rights. He regularly appears before state and federal courts in Rhode Island and Massachusetts on wide-ranging civil, criminal, appellate, administrative, and domestic matters.

Kristen and Alex author the Rhode Island Small Business Journal’s “Personnel Practices” article series, highlighting legal issues facing Rhode Island employers.