Barbuto v. Advantage Sales and Marketing, LLC

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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-marijuana-

laws.aspx [https://perma.cc/9VYY-YMP8] (reporting that twenty-

nine 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 Smith-

Pfeffer 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.