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SJC-12226

CRISTINA BARBUTO vs. ADVANTAGE SALES AND MARKETING, LLC, 

& another.

1

Suffolk. March 9, 2017. - July 17, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Marijuana. Anti-Discrimination Law, Handicap, Employee, 

Termination of employment. Employment, Discrimination, 

Termination. Practice, Civil, Motion to dismiss.

Civil action commenced in the Superior Court Department on 

September 4, 2015.

A motion to dismiss was heard by Robert N. Tochka, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Matthew J. Fogelman (Adam D. Fine also present) for the 

plaintiff.

Michael K. Clarkson (M. Tae Phillips also present) for the 

defendants.

The following submitted briefs for amici curiae:

Elizabeth Milito, of the District of Columbia, & Gregory D. 

Cote for NFIB Small Business Legal Center.

Reid M. Wakefield & Constance M. McGrane for Massachusetts 

Commission Against Discrimination.

 

1 Joanne Meredith Villaruz.
2

David A. Russcol & Chetan Tiwari for Massachusetts 

Employment Lawyers Association & others.

GANTS, C.J. In 2012, Massachusetts voters approved the 

initiative petition entitled, "An Act for the humanitarian 

medical use of marijuana," St. 2012, c. 369 (medical marijuana 

act or act), whose stated purpose is "that there should be no 

punishment under state law for qualifying patients . . . for the 

medical use of marijuana." Id. at § 1. The issue on appeal is 

whether a qualifying patient who has been terminated from her 

employment because she tested positive for marijuana as a result 

of her lawful medical use of marijuana has a civil remedy 

against her employer. We conclude that the plaintiff may seek a 

remedy through claims of handicap discrimination in violation of 

G. L. c. 151B, and therefore reverse the dismissal of the 

plaintiff's discrimination claims. We also conclude that there 

is no implied statutory private cause of action under the 

medical marijuana act and that the plaintiff has failed to state 

a claim for wrongful termination in violation of public policy, 

and therefore affirm the dismissal of those claims.2

 

2 We acknowledge the amicus briefs submitted by the 

Massachusetts Commission Against Discrimination; the National 

Federation of Independent Business Small Business Legal Center;

and the Massachusetts Employment Lawyers Association, the 

American Civil Liberties Union of Massachusetts, GLBTQ Legal 

Advocates & Defenders, Mental Health Legal Advisors Committee, 

Union of Minority Neighborhoods, the Jewish Alliance for Law and 

Social Action, and Health Law Advocates.
3

Background. "We review the allowance of a motion to 

dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 

674, 676 (2011). In deciding whether a count in the complaint 

states a claim under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 

(1974), we accept as true the allegations in the complaint, draw 

every reasonable inference in favor of the plaintiff, and 

determine whether the factual allegations plausibly suggest an 

entitlement to relief under the law. Id.

As alleged in the complaint, the plaintiff, Cristina 

Barbuto, was offered an entry-level position with defendant 

Advantage Sales and Marketing (ASM) in the late summer of 2014, 

and accepted the offer. An ASM representative later left a 

message for Barbuto stating that she was required to take a 

mandatory drug test. Barbuto told the ASM employee who would be 

her supervisor that she would test positive for marijuana. 

Barbuto explained that she suffers from Crohn's disease, a 

debilitating gastrointestinal condition; that her physician had 

provided her with a written certification that allowed her to 

use marijuana for medicinal purposes; and that, as a result, she 

was a qualifying medical marijuana patient under Massachusetts

law. She added that she did not use marijuana daily and would 

not consume it before work or at work.

Typically, Barbuto uses marijuana in small quantities at 

her home, usually in the evening, two or three times per week. 
4

As a result of her Crohn's disease, and her irritable bowel 

syndrome, she has "little or no appetite," and finds it 

difficult to maintain a healthy weight. After she started to 

use marijuana for medicinal purposes, she gained fifteen pounds 

and has been able to maintain a healthy weight.

The supervisor told Barbuto that her medicinal use of 

marijuana "should not be a problem," but that he would confirm 

this with others at ASM. He later telephoned her and confirmed 

that her lawful medical use of marijuana would not be an issue 

with the company.

On September 5, 2014, Barbuto submitted a urine sample for 

the mandatory drug test. On September 11, she went to an ASM

training program, where she was given a uniform and assigned a 

supermarket location where she would promote the products of 

ASM's customers. She completed her first day of work the next 

day. She did not use marijuana at the workplace and did not 

report to work in an intoxicated state. That evening, defendant 

Joanna Meredith Villaruz, ASM's Human Resources representative, 

informed Barbuto that she was terminated for testing positive 

for marijuana. Villaruz told Barbuto that ASM did not care if 

Barbuto used marijuana to treat her medical condition because 

"we follow federal law, not state law."

Barbuto filed a verified charge of discrimination against 

ASM and Villaruz with the Massachusetts Commission Against 
5

Discrimination (MCAD), which she later withdrew in order to file 

a complaint in the Superior Court. The complaint included six 

claims: (1) handicap discrimination, in violation of G. L. 

c. 151B, § 4 (16); (2) interference with her right to be 

protected from handicap discrimination, in violation of G. L. 

c. 151B, § 4 (4A); (3) aiding and abetting ASM in committing 

handicap discrimination, in violation of G. L. c. 151B, § 4 (5); 

(4) invasion of privacy, in violation of G. L. c. 214, § 1B; 

(5) denial of the "right or privilege" to use marijuana lawfully

as a registered patient to treat a debilitating medical 

condition, in violation of the medical marijuana act; and (6) 

violation of public policy by terminating the plaintiff for 

lawfully using marijuana for medicinal purposes. The second and 

third claims were brought against Villaruz alone; the rest were 

brought against both ASM and Villaruz. After unsuccessfully

attempting to remove the case to United States District Court, 

the defendants filed a motion to dismiss the complaint in the 

Superior Court.

The judge allowed the motion as to all counts except the

invasion of privacy claim. At the request of the plaintiff, the 

judge entered a separate and final judgment on the dismissed 

claims, and stayed the invasion of the privacy claim pending 

appeal. The plaintiff filed a notice of appeal regarding the 
6

dismissed claims, and we allowed the plaintiff's application for 

direct appellate review.

Discussion. 1. Massachusetts medical marijuana act.

Under the medical marijuana act, a "qualifying patient" is 

defined as "a person who has been diagnosed by a licensed 

physician as having a debilitating medical condition"; Crohn's 

disease is expressly included within the definition of a 

"debilitating medical condition." St. 2012, c. 369, §§ 2 (K),

(C). The act protects a qualifying patient from "arrest or 

prosecution, or civil penalty, for the medical use of marijuana"

provided the patient "(a) [p]ossesses no more marijuana than is 

necessary for the patient's personal, medical use, not exceeding 

the amount necessary for a sixty-day supply; and (b) [p]resents 

his or her registration card to any law enforcement official who 

questions the patient . . . regarding use of marijuana." St. 

2012, c. 369, § 4. The act also provides, "Any person meeting 

the requirements under this law shall not be penalized under 

Massachusetts law in any manner, or denied any right or 

privilege, for such actions." Id.

Like Massachusetts, nearly ninety per cent of States, as 

well as Puerto Rico and the District of Columbia, allow the 

limited possession of marijuana for medical treatment. See 

Congressional Research Service, The Marijuana Policy Gap and the 

Path Forward 7 (Mar. 10, 2017). See also National Conference of 
7

State Legislatures, State Medical Marijuana Laws (2017) , 

http://www.ncsl.org/research/health/state-medical-marijuanalaws.aspx [https://perma.cc/9VYY-YMP8] (reporting that twentynine States, the District of Columbia, Puerto Rico, and Guam 

allow for "comprehensive public medical marijuana and cannabis 

programs," while seventeen other States allow use of "'low THC, 

high cannabidiol . . . products' for medical reasons in limited 

situations or as a legal defense").3 Yet under Federal law, 

marijuana continues to be a Schedule I controlled substance 

under the Controlled Substances Act, 21 U.S.C. § 812(b)(1), (c)

(2012), whose possession is a crime, regardless of whether it is 

prescribed by a physician for medical use. See Gonzales v. 

Raich, 545 U.S. 1, 27 (2005) ("The [Controlled Substances Act] 

designates marijuana as contraband for any purpose; in fact, by 

characterizing marijuana as a Schedule I drug, Congress 

expressly found that the drug has no acceptable medical uses"

[emphasis in original]). Consequently, a qualifying patient in 

Massachusetts who has been lawfully prescribed marijuana remains 

potentially subject to Federal criminal prosecution for 

possessing the marijuana prescribed. It is against this unusual 

 

3 In November, 2016, Massachusetts voters approved another 

initiative petition that legalized the recreational possession 

and use of marijuana by persons over twenty-one years of age. 

See St. 2016, c. 334. This initiative is irrelevant to this 

appeal, because the plaintiff's possession and use of marijuana 

for medical treatment was already lawful at the time her 

employment was terminated for its use.
8

backdrop that we review the judge's dismissal of every claim in 

the complaint except for the privacy claim.

2. Handicap discrimination. Under G. L. c. 151B, 

§ 4 (16), it is an "unlawful practice . . . [f]or any employer 

. . . to dismiss from employment or refuse to hire . . . , 

because of [her] handicap, any person alleging to be a qualified 

handicapped person, capable of performing the essential 

functions of the position involved with reasonable 

accommodation, unless the employer can demonstrate that the 

accommodation required to be made to the physical or mental 

limitations of the person would impose an undue hardship to the 

employer's business."4 "In interpreting the meaning of these 

provisions, we give 'substantial deference' to the guidelines 

interpreting G. L. c. 151B, promulgated by the MCAD, although we 

recognize that the guidelines do not carry the force of law."

Gannon v. Boston, 476 Mass. 786, 792 (2017), citing Dahill v. 

Police Dep't of Boston, 434 Mass. 233, 239 (2001). "We remain 

mindful that the Legislature instructed that G. L. c. 151B 

 

4 The law defines the term "handicap" to mean "(a) a 

physical or mental impairment which substantially limits one or 

more major life activities of a person; (b) a record of having 

such impairment; or (c) being regarded as having such 

impairment." G. L. c. 151B, § 1 (17). "[H]andicapped person" 

means "any person who has a handicap." G. L. c. 151B, § 1 (19). 

A "qualified handicapped person" is "a handicapped person who is 

capable of performing the essential functions of a particular 

job, or who would be capable of performing the essential 

functions of a particular job with reasonable accommodation to 

the handicap." G. L. c. 151B, § 1 (16).
9

'shall be construed liberally for the accomplishment of its 

purposes.'" Gannon, supra at 793, quoting G. L. c. 151B, § 9.

The plaintiff alleges that she is a "handicapped person" 

because she suffers from Crohn's disease and that she is a 

"qualified handicapped person" because she is capable of 

performing the essential functions of her job with a reasonable 

accommodation to her handicap; that is, with a waiver of ASM's 

policy barring anyone from employment who tests positive for 

marijuana so that she may continue to use medical marijuana as 

prescribed by her physician.

5 She adequately states a claim for 

handicap discrimination in violation of § 4 (16) if the 

allegations in her complaint, accepted as true, suffice to make 

a facial showing that she is a "qualified handicapped person" 

who was terminated because of her handicap. See Massachusetts 

Commission Against Discrimination, Guidelines: Employment 

Discrimination on the Basis of Handicap, Chapter 151B, § IX.A.3

(1998) (MCAD Guidelines).

 

5 "Reasonable accommodation" is not a defined term in G. L. 

c. 151B, § 1, but it is defined in guidelines regarding handicap 

discrimination issued by the Massachusetts Commission Against 

Discrimination: "A 'reasonable accommodation' is any adjustment 

or modification to a job (or the way a job is done), employment 

practice, or work environment that makes it possible for a 

handicapped individual to perform the essential functions of the 

position involved and to enjoy equal terms, conditions and 

benefits of employment" (footnote omitted). Massachusetts 

Commission Against Discrimination, Guidelines: Employment 

Discrimination on the Basis of Handicap Chapter 151B § II.C 

(1998) (MCAD Guidelines).
10

Where Crohn's disease is characterized as a "debilitating 

medical condition" under the medical marijuana act, see St. 

2012, c. 369, § 2 (C), and where the complaint alleges that, as 

a result of this condition, combined with irritable bowel 

syndrome, the plaintiff has "little or no appetite" and has 

difficulty maintaining a healthy weight, we conclude that she 

has adequately alleged that she has a physical impairment that 

substantially limits one or more major life activities and 

therefore is a "handicapped person" as defined in § 1 (19).6

Where a plaintiff is handicapped and where she suffered an 

adverse employment action even though she was capable of 

performing the essential functions of her position with some 

form of accommodation, the plaintiff adequately alleges a claim 

of handicap discrimination if the accommodation that she alleges 

is necessary is facially reasonable. See Godfrey v. Globe 

Newspaper Co., 457 Mass. 113, 120 (2010). Because a reasonable 

accommodation claim may arise in a wide variety of contexts, 

courts are reluctant to set "hard and fast rules" as to when an 

 

6 Barbuto's complaint does not specify which "major life 

activity" her Crohn's disease impairs. However, accepting the 

facts alleged in the complaint as true, it appears that the 

disease significantly impairs her ability to work, which is a 

major life activity. See G. L. c. 151B, § 1 (20); New Bedford

v. Massachusetts Comm'n Against Discrimination, 440 Mass. 450, 

464-465 (2003). We also note that eating is widely recognized 

as a major life activity under Federal antidiscrimination case 

law. See Kapche v. Holder, 677 F.3d 454, 461 & n.6 (D.C. Cir. 

2012), and cases cited.
11

accommodation is facially reasonable. See Reed v. LePage 

Bakeries, Inc., 244 F.3d 254, 259 n.5 (1st Cir. 2001). 

Generally speaking, however, a plaintiff must at least show that 

the accommodation is "feasible for the employer under the 

circumstances." Id. at 259.

The defendants argue that Barbuto has failed to state a

claim of handicap discrimination for two reasons. First, they

contend that she has not adequately alleged that she is a 

"qualified handicapped person" because the only accommodation 

she sought -- her continued use of medical marijuana -- is a 

Federal crime, and therefore is facially unreasonable. See 

Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225, 1229 (D.N.M. 

2016) ("medical marijuana is not an accommodation that must be 

provided for by the employer"); Ross v. RagingWire Telecomm., 

Inc., 42 Cal. 4th 920, 926 (2008) (California's statute 

prohibiting handicap discrimination "does not require employees 

to accommodate the use of illegal drugs"). Second, they contend 

that, even if she were a "qualified handicapped person," she was 

terminated because she failed a drug test that all employees are 

required to pass, not because of her handicap.

As to the defendants' first argument, where an employee is 

handicapped because she suffers from a debilitating medical 

condition that can be alleviated or managed with medication, one 

generally would expect an employer not to interfere with the 
12

employee taking such medication, or to terminate her because she 

took it. If the employer, however, had a drug policy 

prohibiting the use of such medication, even where lawfully 

prescribed by a physician, the employer would have a duty to 

engage in an interactive process with the employee to determine 

whether there were equally effective medical alternatives to the 

prescribed medication whose use would not be in violation of its

policy. See Godfrey, 457 Mass. at 120 ("If the accommodation 

proposed by the employee appears unduly onerous, the employer 

has an obligation to work with the employee to determine whether 

another accommodation is possible"). See also Massachusetts Bay 

Transp. Auth. v. Massachusetts Comm'n Against Discrimination, 

450 Mass. 327, 342 n.17 (2008) (when handicapped employee 

requests accommodation, "employer is obligated to participate in 

the interactive process of determining one"); MCAD Guidelines,

§ VII.C (once handicapped employee notifies employer of need for 

accommodation to perform essential functions of job, "the 

employer should initiate an informal interactive process" with 

employee to "identify the precise limitation resulting from the 

handicap and potential reasonable accommodations that could 

overcome those limitations").

Where no equally effective alternative exists, the employer 

bears the burden of proving that the employee's use of the 

medication would cause an undue hardship to the employer's 
13

business in order to justify the employer's refusal to make an 

exception to the drug policy reasonably to accommodate the 

medical needs of the handicapped employee. See Godfrey, 457 

Mass. at 120, quoting Cox v. New England Tel. & Tel. Co., 414 

Mass. 375, 386 n.3 (1993) ("Once an employee 'make[s] at least a 

facial showing that reasonable accommodation is possible,' the 

burden of proof [of both production and persuasion] shifts to 

the employer to establish that a suggested accommodation would 

impose an undue hardship"). Because the burden of proving undue 

hardship rests with the employer, where an employee brings a 

handicap discrimination claim following her dismissal for the 

use of her prescribed medication, her complaint will state a 

claim for relief that will survive a motion to dismiss where it 

adequately alleges that she is a "qualified handicapped person" 

because she could have competently performed her job with the 

medication, and that allowing her to use the medication was at 

least facially a reasonable accommodation.

Here, the defendants contend that, because the prescribed 

medication is marijuana, which is illegal to possess under 

Federal law, an accommodation that would permit the plaintiff to 

continue to be treated with medical marijuana is per se 

unreasonable. They also contend that, because such an 

accommodation is facially unreasonable, it owed the plaintiff no 

obligation to participate in the interactive process to identify 
14

a reasonable accommodation before they terminated her 

employment. We are not persuaded by either argument.

Under Massachusetts law, as a result of the act, 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. Where, in the opinion of the employee's 

physician, medical marijuana is the most effective medication 

for the employee's debilitating medical condition, and where any 

alternative medication whose use would be permitted by the 

employer's drug policy would be less effective, an exception to 

an employer's drug policy to permit its use is a facially 

reasonable accommodation. A qualified handicapped employee has 

a right under G. L. c. 151B, § 4 (16), not to be fired because 

of her handicap, and that right includes the right to require an 

employer to make a reasonable accommodation for her handicap to 

enable her to perform the essential functions of her job.

Our conclusion finds support in the marijuana act itself, 

which declares that patients shall not be denied "any right or 

privilege" on the basis of their medical marijuana use. St. 

2012, c. 369, § 4. A handicapped employee in Massachusetts has 

a statutory "right or privilege" to reasonable accommodation

under G. L. c. 151B, § 4. If an employer's tolerance of an 

employee's use of medical marijuana were a facially unreasonable 

accommodation, the employee effectively would be denied this 
15

"right or privilege" solely because of the patient's use of 

medical marijuana.7

The act also makes clear that it does not require "any 

accommodation of any on-site medical use of marijuana in any 

place of employment." St. 2012, c. 369, § 7 (D). This 

limitation implicitly recognizes that the off-site medical use 

of marijuana might be a permissible "accommodation," which is a 

term of art specific to the law of handicap discrimination.

 

7 The language of the Massachusetts medical marijuana act 

distinguishes this case from a California Supreme Court decision 

that denied an employee's challenge under the State's handicap 

discrimination law to a termination based on the employee's use 

of medical marijuana. The California medical marijuana law at 

issue in Ross v. RagingWire Telecomm. Inc., 42 Cal. 4th 920, 

927-928 (2008), did not contain language protecting medical 

marijuana users from the denial of any right or privilege.

In other published cases where State Supreme Courts have 

rejected employees' claims for relief from their termination of 

employment because of their use of medical marijuana, the 

employees did not bring handicap discrimination claims. In 

Coats v. Dish Network, LLC, 350 P.3d 849, 851 (Colo. 2015), the 

plaintiff brought a wrongful termination claim, alleging that 

his termination was in violation of a State statute that barred 

an employer from discharging an employee based on the employee's 

participation in "lawful activities" off-site during nonworking 

hours. The Supreme Court of Colorado affirmed the dismissal of 

the claim, concluding that the Legislature did not intend the 

statute to apply to an activity, such as the possession of 

marijuana, that was unlawful under Federal law. Id. at 853. In 

Roe v. Teletech Customer Care Mgt. (Colorado) LLC, 171 Wash. 2d 

736, 760 (2011), the Washington Supreme Court affirmed the 

allowance of summary judgment in favor of the employer on the 

plaintiff's wrongful termination claims, holding that the 

State's medical marijuana law did not create a private right of 

action and did not proclaim a public policy prohibiting the 

discharge of an employee for medical marijuana use.
16

The fact that the employee's possession of medical 

marijuana is in violation of Federal law does not make it per se 

unreasonable as an accommodation. The only person at risk of 

Federal criminal prosecution for her possession of medical 

marijuana is the employee. An employer would not be in joint 

possession of medical marijuana or aid and abet its possession 

simply by permitting an employee to continue his or her off-site 

use.

Nor are we convinced that, as a matter of public policy, we 

should declare such an accommodation to be per se unreasonable 

solely out of respect for the Federal law prohibiting the 

possession of marijuana even where lawfully prescribed by a

physician. Since 1970 when Congress determined that marijuana 

was a Schedule I controlled substance that, in contrast with a 

Schedule II, III, IV, or V controlled substance, "has no 

currently accepted medical use in treatment in the United 

States," nearly ninety per cent of the States have enacted laws 

regarding medical marijuana that reflect their determination 

that marijuana, where lawfully prescribed by a physician, has a 

currently accepted medical use in treatment.8 See 21 U.S.C. 

§ 812(b)(1)(B). To declare an accommodation for medical 

 

8 See National Organization for Reform of Marijuana Laws 

(NORML) v. Bell, 488 F. Supp. 123, 134-137 (D.D.C. 1980) 

(discussing legislative history of Controlled Substances Act); 

id. at 135 (in 1970 "few reliable scientific studies existed 

that could give accurate information to the legislators").
17

marijuana to be per se unreasonable out of respect for Federal 

law would not be respectful of the recognition of Massachusetts 

voters, shared by the legislatures or voters in the vast 

majority of States, that marijuana has an accepted medical use 

for some patients suffering from debilitating medical 

conditions. Cf. Commonwealth v. Craan, 469 Mass. 24, 35 (2014)

("the fact that [marijuana possession] is technically subject to 

a Federal prohibition does not provide [the Commonwealth] an 

independent justification for a warrantless search").9

In addition, even if the accommodation of the use of 

medical marijuana were facially unreasonable (which it is not), 

the employer here still owed the plaintiff an obligation under 

G. L. c. 151B, § 4 (16), before it terminated her employment, to 

participate in the interactive process to explore with her 

whether there was an alternative, equally effective medication 

she could use that was not prohibited by the employer's drug 

policy. This failure to explore a reasonable accommodation 

alone is sufficient to support a claim of handicap 

discrimination provided the plaintiff proves that a reasonable 

 

9 The defendants in this case have waived the argument that 

Federal preemption requires the conclusion that an employee's 

use of medical marijuana is facially unreasonable as an 

accommodation. We note that the Oregon Supreme Court rested its 

decision that an employee's use of medical marijuana was not a 

reasonable accommodation under the State's disability act on 

this ground. Emerald Steel Fabricators, Inc. v. Bureau of Labor 

& Indus., 348 Or. 159, 189-190 (2010).
18

accommodation existed that would have enabled her to be a 

"qualified handicapped person." See Spurling v. C & M Fine 

Pack, Inc., 739 F.3d 1055, 1061-1062 (7th Cir. 2014) (employer 

found liable for disability discrimination where it "turn[ed] a 

blind eye" to plaintiff's sleep impairment and terminated her 

without interactive dialogue where she could have demonstrated 

through such dialogue availability of narcolepsy medication that 

would have enabled her to perform essential functions of job).

As to the defendants' second argument, where a handicapped 

employee needs medication to alleviate or manage the medical 

condition that renders her handicapped, and the employer fires 

her because company policy prohibits the use of this medication, 

the law does not ignore the fact that the policy resulted in a 

person being denied employment because of her handicap. By the 

defendants' logic, a company that barred the use of insulin by 

its employees in accordance with a company policy would not be 

discriminating against diabetics because of their handicap, but 

would simply be implementing a company policy prohibiting the 

use of a medication. Where, as here, the company's policy 

prohibiting any use of marijuana is applied against a 

handicapped employee who is being treated with marijuana by a 

licensed physician for her medical condition, the termination of 

the employee for violating that policy effectively denies a 

handicapped employee the opportunity of a reasonable 
19

accommodation, and therefore is appropriately recognized as 

handicap discrimination. Cf. School Comm. of Braintree v. 

Massachusetts Comm'n Against Discrimination, 377 Mass. 424, 425

(1979) (employment policy that prohibited teachers from using 

accrued sick leave for pregnancy-related disabilities that occur 

in extended maternity leaves was gender discrimination).

Our conclusion that an employee's use of medical marijuana 

under these circumstances is not facially unreasonable as an 

accommodation for her handicap means that the dismissal of the 

counts alleging handicap discrimination must be reversed. But 

it does not necessarily mean that the employee will prevail in 

proving handicap discrimination. The defendants at summary 

judgment or trial may offer evidence to meet their burden to 

show that the plaintiff's use of medical marijuana is not a 

reasonable accommodation because it would impose an undue 

hardship on the defendants' business. See Godfrey, 457 Mass. at 

120. See also G. L. c. § 4 (16) (listing factors considered in 

determining whether accommodation would create undue hardship). 

For instance, an employer might prove that the 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. See Gannon, 476 

Mass. at 800.
20

Alternatively, an undue hardship might be shown if the 

employer can prove that the use of marijuana by an employee 

would violate an employer's contractual or statutory obligation, 

and thereby jeopardize its ability to perform its business. We 

recognize that transportation employers are subject to 

regulations promulgated by the United States Department of 

Transportation that prohibit any safety‐sensitive employee 

subject to drug testing under the department's drug testing 

regulations from using marijuana. See 49 CFR §§ 40.1(b),

40.11(a) (2001). See also DOT 'Medical Marijuana' Notice, U.S. 

Dept. of Transp. (Updated: June 20, 2017), 

https://www.transportation.gov/odapc/medical-marijuana-notice

[https://perma.cc/FY24-SEMZ]. In addition, we recognize that 

Federal government contractors and the recipients of Federal 

grants are obligated to comply with the Drug Free Workplace Act, 

41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to 

make "a good faith effort . . . to maintain a drug-free 

workplace," and prohibits any employee from using a controlled 

substance in the workplace.10

Whether the employer met its burden of proving that the 

requested accommodation would impose an undue hardship on the 

 

10 As noted earlier, we recognize that the Massachusetts 

medical marijuana act does not require any employer to permit 

on-site marijuana use as an accommodation to an employee. See 

St. 2012, c. 369, § 7 (D).
21

employer's business is an issue that may be resolved through a 

motion for summary judgment or at trial; it is not appropriately 

addressed through a motion to dismiss. Because the plaintiff's 

continued use of medical marijuana under these circumstances is 

not facially unreasonable as an accommodation for her handicap 

and because the plaintiff has adequately alleged that ASM failed 

to participate in an interactive process with the plaintiff to 

determine whether there was a reasonable accommodation for her 

handicap, we reverse the dismissal of count 1, alleging handicap 

discrimination. We also reverse the dismissal of counts 2 and 3

against Villaruz, which allege that she aided and abetted ASM's 

handicap discrimination and interfered with the plaintiff's 

exercise of her right to be free from handicap discrimination.

3. Implied private cause of action under the medical 

marijuana act. The plaintiff alleges in count 4 of her 

complaint that her termination was in violation of the medical 

marijuana act, which suggests that she claims she has a private 

cause of action under the act against an employer who terminates 

her employment for the lawful use of medical marijuana. When 

the voters approved the act through the initiative petition, two

New England States, Rhode Island and Maine, already had enacted 

comparable statutes that expressly included provisions 

prohibiting employers from taking adverse employment action 

against an employee for his or her lawful use of medical 
22

marijuana. See R.I. Gen. Laws. § 21-28.6-4 (b) (2006 & Supp. 

2017) ("No school, employer or landlord may refuse to enroll, 

employ or lease to or otherwise penalize a person solely for his 

or her status as a [registered qualifying patient]"); Me. Rev. 

Stat. Ann. tit. 22, § 2423-E (West 1964 & Supp. 2016) ("A 

school, employer or landlord may not refuse to enroll or employ 

or lease to or otherwise penalize a person for that person's 

status as a qualifying patient . . . unless failing to do so 

would put the school, employer or landlord in violation of 

[F]ederal law or cause it to lose a [F]ederal contract or 

funding"). The Massachusetts act did not include such language. 

Therefore, we consider whether, despite the absence of such 

language, a private right of action of an employee who was 

terminated for her lawful use of medical marijuana exists under 

the act by implication.

Legislative intent is "the determinative factor in deciding 

whether a private cause of action can be implied from a 

statute." Loffredo v. Center for Addictive Behaviors, 426 Mass. 

541, 543 (1998), and cases cited. "[W]e have generally been 

reluctant to infer a private cause of action from a statute in 

the absence of some indication from the Legislature supporting 

such an inference." Id. at 544. Where a statute was enacted by 

the voters through an initiative petition, "it is to the wishes 

of the people, not the Legislature, that we must look." Bates
23

v. Director of Office of Campaign & Political Fin., 436 Mass. 

144, 173 (2002).

In considering whether there is any such indication from 

the voters, we look to the closest equivalent to legislative 

history, which is the Information for Voters guide that is 

prepared by the Secretary of the Commonwealth and sent to each 

registered voter before the election.11 See Roe v. Teletech 

Customer Care Mgt. (Colorado) LLC, 171 Wash. 2d 736, 747 (2011) 

("If there is ambiguity in an initiative, the court may look to 

extrinsic evidence of the voters' intent such as statements in 

the voters' pamphlet"). There is no indication from the guide 

that the voters understood they were creating a private right of 

action through passage of the initiative; the guide is silent 

 

11 The voter information booklet prepared by the Secretary 

of the Commonwealth (Secretary) "is a single, comprehensive 

collection of the information that is officially available to 

voters in advance of the election. For each ballot question, 

the guide contains (i) the title given to the question by the 

Attorney General and the Secretary; (ii) the Attorney General's 

summary in full; (iii) the two one-sentence statements prepared 

by the Attorney General and the Secretary describing the effect 

of a 'yes' and a 'no' vote; (iv) a statement prepared by the 

Secretary of Administration and Finance describing the fiscal 

impact of the proposed act; (v) any legislative committee 

majority reports, together with the names of the majority and 

minority members of the committees that may have considered the 

proposed act; (vi) a statement of votes of the General Court on 

the proposed act, if any; (vii) arguments, not exceeding 150 

words each, for and against the proposed act submitted by its 

proponents and opponents; and (viii) the full text of the 

proposed act itself." Hensley v. Attorney Gen., 474 Mass. 651, 

660 n.14 (2016), citing art. 48, General Provisions, IV, of the 

Amendments to the Massachusetts Constitution, as amended by art. 

108 of the Amendments; and G. L. c. 54, §§ 53, 54.
24

with respect to adverse employment action arising from an 

employee's use of medical marijuana.

We also consider whether the absence of a private cause of 

action would render the statute ineffective, and frustrate the 

voters' purpose in approving the initiative. See Bates, 436 

Mass. at 173-174, quoting Boston Elevated Ry. v. Commonwealth, 

310 Mass. 528, 548 (1942) ("We will not impute to the voters who 

enacted the clean elections law an 'intention to pass an 

ineffective statute'"). Here, where a comparable cause of 

action already exists under our law prohibiting handicap 

discrimination, a separate, implied private right of action is 

not necessary to protect a patient using medical marijuana from 

being unjustly terminated for its use. The Legislature's 

provision of a separate remedy, especially, as here, a separate 

civil remedy, "weighs heavily against recognizing" an implied 

private right of action in a statute. See Salvas v. Wal-Mart 

Stores, Inc., 452 Mass. 337, 373 (2008). Cf. Loffredo, 426 

Mass. at 547, quoting Transamerica Mtge. Advisors, Inc. v. 

Lewis, 444 U.S. 11, 19 (1979) ("[W]here a statute expressly 

provides a particular remedy or remedies, a court must be chary 

of reading others into it").

In addition, as noted earlier, the drafters of the act 

appear to have recognized the existence of a cause of action for 

handicap discrimination by specifically prohibiting "on-site" 
25

medical marijuana use as an "accommodation." St. 2012, c. 369, 

§ 7 (D). The drafters also barred the denial of a "right or 

privilege" for marijuana use, which suggests a preexisting right 

or privilege, not a right created by the act. Id. at § 4.

We interpret statutes, where we can, to be in harmony with 

each other. See Carleton v. Commonwealth, 447 Mass. 791, 809 

(2006); Charland v. Muzi Motors, Inc., 417 Mass. 580, 582-583 

(1994). Recognizing an implied private right of action under 

the medical marijuana act for an employee could conflict with 

the employee's right of action under our antidiscrimination law. 

G. L. c. 151B. In contrast to our antidiscrimination law, which 

sets forth limitations such as the employer's undue hardship 

defense, G. L. c. 151B, § 3 (16), the medical marijuana act 

provides no guidance as to what the appropriate contours of the 

implied right of action would be. We will not imply a separate 

private cause of action for aggrieved employees under the 

medical marijuana act, where such employees are already provided 

a remedy under our discrimination law, and where doing so would 

create potential confusion.

4. Wrongful termination in violation of public policy.

The plaintiff alleges in count 6 of her complaint a claim of 

wrongful termination in violation of public policy, where the 

public policy is the protection of an employee's right to use 

marijuana for medicinal purposes. "As an exception to the 
26

general rule that an employer may terminate an at-will employee 

at any time with or without cause, we have recognized that an 

at-will employee has a cause of action for wrongful termination 

only if the termination violates a clearly established public 

policy." King v. Driscoll, 418 Mass. 576, 582 (1994), S.C., 424 

Mass. 1 (1996). We "consistently [have] interpreted the public 

policy exception narrowly, reasoning that to do otherwise would 

'convert the general rule . . . into a rule that requires just 

cause to terminate an at-will employee.'" Id., quoting SmithPfeffer v. Superintendent of the Walter E. Fernald State Sch., 

404 Mass. 145, 150 (1989). Because a competent employee has a 

cause of action for handicap discrimination where she is 

unfairly terminated for her use of medical marijuana to treat a 

debilitating medical condition, we see no need and no reason to 

recognize a separate cause of action for wrongful termination 

based on the violation of public policy arising from such 

handicap discrimination. We also note, as we did in rejecting 

an implied private cause of action under the act, that 

recognizing such a wrongful termination claim would invite 

confusion as to whether its parameters mirror those for handicap 

discrimination.

Conclusion. For the reasons stated above, we reverse the 

judge's allowance of the motion to dismiss the plaintiff's claim 

for handicap discrimination and the related claims under G. L. 
27

c. 151B, and affirm the allowance of the motion as to the counts 

claiming an implied private cause of action under the act and 

wrongful termination in violation of public policy. We remand 

the case to the Superior Court for further proceedings 

consistent with this opinion.

So ordered.