Jules: Hash is legal there in Amsterdam, right?

Vincent: Yeah, it’s legal, but it ain’t a hundred percent legal. I mean, you can’t just walk into a restaurant, roll a joint and start puffing away. You’re only supposed to smoke in your home or certain designated places.

Jules: And those are hashbars?

Vincent: Yeah. It breaks down like this: it’s legal to buy it, it’s legal to own it, and, if you’re the proprietor of a hash bar, it’s legal to sell it. It’s still illegal to carry it around, but that doesn’t really matter ‘cause…get a load of this: if you get stopped by the cops in Amsterdam, it’s illegal for them to search you. I mean, that’s a right the cops in Amsterdam don’t have.

Jules: I’m going, that’s all there is to it, I’m *^`#ing going.

Vincent: Yeah baby, you’d dig it the most.

Twenty plus years after Vincent Vega educated Jules Winnfield in Pulp Fiction on Dutch drug law (and, perhaps more memorably, on the metric system’s impact on appropriately naming a hamburger), marijuana is now legal in twenty-nine U.S. states and the District of Columbia, which includes recreational use in eight of those thirty jurisdictions.

Yet, as Katharine Liao detailed effectively (Reefer Madness),employers have remained largely unaffected by that legalization. Courts have repeatedly held that employers may fire employees testing positive for marijuana, even where used to treat a disability.

But, nothing lasts forever, even cold November rain. A recent Massachusetts Supreme Judicial Court opinion breaks ranks with prior courts’ treatment of this issue.  In Barbuto v. Advantage Sales & Marketing, LLC, 477 Mass. 456 (2017), Barbuto sued her former employer alleging disability discrimination after being fired for testing positive for marijuana, which she used to treat Crohn’s disease (a debilitating gastrointestinal condition).

Barbuto was a sympathetic plaintiff: she had informed her employer that she used marijuana for medicinal purposes in limited quantities at her home with dinner and received confirmation “that her lawful use of medical marijuana would not be an issue ….” But, she was later fired after failing a mandatory drug test despite that she already been performing the job well; had not used marijuana at work; and had never reported to work intoxicated.

The Massachusetts Supreme Judicial Court held that Barbuto had a claim under the state disability discrimination statute: “an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation” because Massachusetts’ marijuana law provides “that patients shall not be denied any ‘right or privilege’ on the basis of their medical marijuana use.”

In Barbuto, defendants waived any argument that federal law (which still criminalizes marijuana possession and use) preempts any claims for protection of marijuana use under state law. Other courts have addressed preemption issue but with no consistent result. Compare Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-cv-1938 (JAM), 2017 WL 3401260 (D. Conn. Aug. 8, 2017) (rejecting federal preemption of Connecticut’s Palliative Use of Marijuana Act that prohibits employers from discriminating against authorized persons who use medicinal marijuana outside of the workplace) with Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159, 177-78 190 (2010) (holding that to the extent Oregon law affirmatively authorized the use of medical marijuana, it stands as an obstacle to the Controlled Substances Act and is preempted).

As such, similar to Vincent Vega’s point that although marijuana may be legal in Amsterdam, “it ain’t a hundred percent legal.” There are three discrete limitations that Vega would add to his commentary on Barbuto.

  1. The Massachusetts high court emphasized that its ruling does not require employers to tolerate on-site use of medical marijuana. So, as Mr. Vega so eloquently laid it out, it’s not as if an employee can just walk into work, “roll a joint and start puffing away. You’re only supposed to smoke in your home or certain designated places.”
  2. The court recognized that accommodation would be an undue hardship in some situations: “For instance, an employer might prove that continued use of medical marijuana would impair the employee’s performance of her work or pose an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees.”
  3. The Massachusetts court noted that the language of its marijuana act distinguished this case from cases in other states (i.e., California). Put with the bluntness (pun intended) of the Pulp Fiction script, Massachusetts and Amsterdam may each be unique: places that employees failing drug tests elsewhere wish were home.