unreasonable. Simply put, there are situations where medical marijuana accommodation may or may not be reasonable. And since the court in this case did not rule on whether the employee did indeed have a right to an accommodation, we do not have any hard or fast rules from this case about what an employer should or should not do.


What Barbuto vs. Advantage Sales & Marketing Does Mean In light of Barbuto, the first thing an employer should do is review his or her drug-free workplace policy. Does your policy contain prescription drug provisions? Are safety-sensitive positions outlined and defined? Are reasons given for drug testing? Each of these things will improve a drug testing policy, especially when it comes to medical marijuana. Barbuto did not create any new law. It


simply reminded employers of existing law in Massachusets. Namely, that when a qualified disabled individual requests an accommodation in Massachusets, disability discrimination law may require that employer to enter into an interactive process to determine if the requested accommodation is reasonable or not. If your policy does not answer the above questions and if your managers, supervisors, and HR office are not up to date on the policy, then it is difficult for them to enforce it fairly, consistently, or defensibly. Te next thing an employer should


do is review the cost that marijuana accommodations will have on their business and become vocal about it. Te fact that nearly 60% of states have legalized medical marijuana, with 8 states legalizing it for recreational use, is


proof that those who will be negatively impacted by legalization have not made themselves heard. Tere is a disconnect between those who advocate for the rights of marijuana users and what is required when operating a business. As more employers understand the actual impact of marijuana legalization on businesses and the trickle down of negative impact to employees, healthcare, and cost, the discussion will change towards protecting employers’ rights. Legalization will continue, that is certain. But that doesn’t mean that laws must be allowed to pass that tie employers’ hands, make workplaces less safe, or interfere with operating a profitable business. Simply put, lawsuits concerning


medical marijuana use in the workplace are on the rise. Before this ruling in Massachusets, a court in Rhode Island ruled in favor of a medical marijuana user who was denied an internship. Since this ruling, a judge in Connecticut ruled to allow a disability discrimination lawsuit between an employer and a medical marijuana-using employee. As more states legalize medical or recreational marijuana, lawsuits are inevitable. Te average cost of an out-of-court defense and setlement is $125,000. While insurance on average will cover around $30,000, employers in such situations are on the hook for $90,000. However, that seems reasonable compared to the average in- court judgment: $200,000 (not including cost of defense). What Barbuto really means for employers is that they need to act now or bear the cost of marijuana legalization for decades to come.


Why Continue Drug Testing for Marijuana? Discontinuing marijuana drug testing means more drug-abusing individuals will apply to work for your company. This isn’t an assumption. This is a documented fact. A few years ago, JCB, a heavy-equipment manufacturer, held a job fair near Savannah, Georgia. When the throng of potential employees learned that the next step of the application process would be a drug test, about half of them left.1


Had that


group of potential employees initially numbered 100, then that would mean about 50 of them refused to continue because of drug testing. We cannot assume that all of them were drug users. Some people may have objected on the grounds that a drug test was an invasion of their privacy. However, we can safely assume that at least some of them were current drug users. When you drop


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