Despite the fact that medical marijuana has been perfectly lawful in Massachusetts since 2012, it was not until July 2017 that the Supreme Judicial Court affirmed an employee’s right to use medical marijuana without fear of adverse employment decisions. See St. 2012, c. 369, §1 et seq; Barbuto v. Advantage Sales Marketing, LLC, 477 Mass. 456 (2017). Barbuto was the first major Massachusetts decision that linked medical marijuana use to the issue of employment discrimination. 477 Mass. 456 (2017). But whether Barbuto will survive under the Trump administration remains to be seen. Now that Jeff Sessions has rolled back Obama-era protections against federal prosecution of marijuana possession, a confrontation between state and federal law – potentially endangering the rights recently affirmed by the Barbuto court – may be inevitable.

Background
Barbuto involved a woman, Cristina Barbuto, who was offered a sales position with Advantage Sales Marketing, LLC, and informed that she had to take a mandatory drug test before she could officially be hired. Although Ms. Barbuto informed the employer that she lawfully used medical marijuana to treat symptoms of Crohn’s disease, her employment was terminated after her drug test came back positive. Ms. Barbuto sued on the grounds that she had been discriminated against based on her status as ‘handicapped’ (the somewhat outdated language used by the Massachusetts anti-discrimination statute, M.G.L. ch. 151B). The Supreme Judicial Court (“SJC”) held that “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication,” and that employers therefore may not discriminate against medical marijuana patients. Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 464 (2017).

Barbuto and Antidiscrimination Law
In the context of the Massachusetts civil rights and anti-discrimination framework, Barbuto means that medical marijuana patients have the right to reasonable accommodations that enable them to perform the essential functions of their jobs, and the right to be free from discrimination based on the disabilities they use marijuana to treat. Discrimination based on perceived or actual handicap is unlawful under M.G.L. ch. 151B, and if an employee – like Ms. Barbuto – is subjected to an adverse employment decision due to her disability, she can assert her rights through a discrimination claim. Typically, in such a case, an employer can defend themselves by showing that the employee’s requested accommodation is not reasonable and would constitute an undue hardship on the employer. Examples of unreasonable accommodations and undue hardships include those that would create a conflict with an employer’s legal obligations. Notably, the SJC rejected the defendants’ argument that Ms. Barbuto’s requested accommodation –that she be permitted to continue treating her Crohn’s symptoms by using marijuana a few nights a week –was unreasonable on its face because it necessarily indicated a violation of federal law.

That federal law still categorizes marijuana as a Schedule 1 controlled substance, among drugs with “no currently accepted medical use and a high potential for abuse” (along with heroin, LSD, ecstasy, methaqualone, and peyote). See Drug Enforcement Administration, Drug Scheduling. Possession of marijuana is still a federal crime. 21 U.S.C. §§ 812(b)(1), (c), 844(a). If the SJC had accepted Advantage Sales’ argument, they would have held that although the use of medical marijuana is perfectly legal under Massachusetts law, employers are free to discriminate against handicapped or disabled individuals who use it to treat their symptoms, simply because federal law has not caught up. Barbuto was a civil rights case, not a case about the legality of marijuana; for that reason, the Barbuto decision was a win not just for advocates of legalization, but for the people’s right to be free from discrimination in employment.

New Federal Guidelines on Marijuana Prohibition
Despite the discrepancy between state law, which permits both medical and recreational marijuana use,  and federal law, which criminalizes all marijuana possession, until recently, Massachusetts marijuana users did not necessarily need to worry about federal Drug Enforcement Administration (“DEA”) agents knocking down their doors. (As of December 2016, under, anyone over 21 can possess up to 1 ounce of marijuana without fear of criminal consequence. M.G.L. ch. 94G, s. 7.) In 2013, former Deputy Attorney General Jim Cole issued a “Guidance Regarding Marijuana Enforcement,” memo, advising federal prosecutors to focus less on strictly enforcing the prohibition against marijuana possession and more on other priorities, such as preventing violence associated with the cannabis trade. The memo was widely interpreted as an instruction to federal prosecutors not to interfere with simple possession in states where marijuana use was legalized. See James M. Cole, Guidance Regarding Marijuana Enforcement, Memorandum (August 29, 2013).

However, to kick off 2018, Attorney General Jeff Sessions rescinded the Cole memo, replacing the hands-off approach embraced by Cole and the Obama administration with more freedom for federal prosecutors. See Laura Jarrett, Sessions nixes Obama-era rules leaving states alone that legalize pot, (Jan. 4, 2018).  Sessions stopped short of specifically instructing prosecutors to pursue more arrests for possession of cannabis, but given their typically high levels of discretion in choosing what crimes to prosecute, how federal prosecutors will implement Sessions’ instructions remains to be seen. If they choose to enforce strict prosecution of marijuana possession, the outcome will likely depend on the jurisdiction in which each case takes place.

Thus far, courts in Oregon, Minnesota, Michigan, New Mexico, Colorado, and Iowa have held that the Federal Controlled Substances Act preempted more lenient local laws permitting marijuana use. See Butler v. Douglas County, 2010 WL 3220199 (D. Or. 2010); Haumant v. Griffin, 699 N.W.2d 774 (Minn. Ct. App. 2005); Forest City Residential Management, Inc. ex rel. Plymouth Square Ltd. Dividend Housing Ass’n v. Beasley, 71 F. Supp. 3d 715 (E.D. Mich. 2014); Garcia v. Tractor Supply Company, 32 A.D. Cas. (BNA) 824 (D.N.M. 2016); People v. Crouse, 2017 CO 5 (Colo. 2017); State v. Rasmussen, 213 N.W.2d 661 (Iowa 1973).

On the other hand, courts in Guam, California, Montana, Arizona, and Michigan have held that the Controlled Substances Act did not preempt state or local regulations. See People of Territory of Guam v. Salas, 1983 WL 29951 (D. Guam 1983); County of San Diego v. San Diego NORML, 165 Cal. App. 4th 798 (4th Dist. 2008); State ex rel. Lance v. District Court of Thirteenth Judicial Dist., In and For Yellowstone County, 168 Mont. 297 (1975); Reed-Kaliher v. Hoggatt, 347 P.3d 136 (Ariz. 2015). We could very well see the kind of circuit split that leads to Supreme Court grants of certiorari.

So will the SJC’s Barbuto decision survive the Trump administration? If not, the implications may be dangerous. If federal prosecutors follow Sessions’ lead and prioritize the enforcement of strict federal prohibitions, and the courts find that the federal law preempts the local, the result will be increased criminalization of medical marijuana patients – and it’s unlikely that patients’ use of their medication will be considered a “reasonable accommodation” within the antidiscrimination framework under such circumstances. The Barbuto case connected the legality of marijuana with an individual’s firmly established civil rights to be free from discrimination in employment. Federal prosecutors should not be given free reign to infringe on those rights when it suits Sessions’ agenda.