On November 8, 2016, Florida voters approved the medical use of marijuana for individuals with certain debilitating medical conditions. The effective date was January 3, 2017.  However, to date, Florida has done nothing to address how employers are to treat employees who will be prescribed marijuana for their disabilities.

One of the unanswered questions for Florida employers is whether off-site use of medical marijuana is considered a reasonable accommodation for a disability. Some other state courts have held that employers have no affirmative duty to accommodate employees who use medical marijuana––relying on their drug-free workplace policy and federal law criminalizing marijuana use. However, the Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales and Marketing recently ruled the other way.

The Barbuto court held that a Massachusetts employer had a duty to engage in the interactive process with an employee taking medical marijuana. The employer could not discharge its duty merely by arguing that medical marijuana is illegal under federal law and the employer has a drug-free workplace. In Barbuto, the plaintiff (Cristina Barbuto) applied for a position with Advantage Sales and Marketing, and was offered the position. When ASM (post offer) told Ms. Barbuto she would have to take a drug test, Ms. Barbuto explained that she took medical marijuana for her debilitating Crohn’s disease. While the supervisor assured Ms. Barbuto that would not be a problem, human resources terminated Ms. Barbuto after her first day at work for failing the drug test.

ASM argued that Ms. Barbuto failed to state a claim of handicap discrimination because 1) requiring ASM to allow Ms. Barbuto to continue to use medical marijuana, which is a federal crime, was facially unreasonable, and 2) the reason for Ms. Barbuto’s termination was not her alleged handicap, but her failure to pass the drug test that all employees are required to take. Neither argument persuaded the court. First, the court explained that ASM had a duty to engage in the interactive process to find other potential alternatives, which ASM did not do.  Then, the court quickly rejected ASM’s second argument because it was ASM’s policy that resulted in Ms. Barbuto’s termination because of her handicap.

Is the Barbuto decision an outlier, or is it the beginning of a trend that will require employers to reasonably accommodate employees using medical marijuana? For Florida employers, it’s anyone’s guess at present.