Media Victory in Libel Case Conveys Strong Protection for Opinion

If you’re looking for a primer on when an opinion is protected speech and when, on the other hand, it can be deemed defamatory, you won’t do much better than November’s big win for the Boston Herald.  Ruling on two cases brought by the band Boston’s lead guitarist, the Supreme Judicial Court didn’t exactly break new ground, but it gave a clear example of how a court should decide whether a statement unambiguously constitutes opinion, thus preventing a libel claim from proceeding.  That’s an important lesson to learn in a state where one of the last media libel cases to go to a jury resulted in a $563,000 verdict against the Herald, and a recent non-media libel case yielded a $2.9 million award for a public-figure plaintiff.

The decision is also notable for protecting headline writers who employ “some drama” to catch the reader’s eye, and for affirming a $132,000 award of costs to the Herald.

The Thanksgiving-eve decision by the S.J.C. came on a consolidated appeal of two separate lawsuits, both of which had been fiercely litigated.  Both were brought by Tom Scholz, primary songwriter and lead guitarist of the classic rock band Boston, over published statements that he said could be construed as blaming him for the 2007 suicide of the band’s co-founder and lead vocalist, Brad Delp.  Some of the statements were contained in a Boston Herald article headlined “Pal’s Snub Made Delp Do It: Boston Rocker’s Ex-Wife Speaks.” That article was written by the Herald’s gossip columnists, Gayle Fee and Laura Raposa, and published on the paper’s front page.

In one of the cases, Scholz sued Delp’s ex-wife, Micki Delp, who was quoted in the Herald article as saying that Brad was upset because a longtime friend, Fran Cosmo, had been “disinvited” from the band’s upcoming reunion summer tour.  Superior Court Judge John Cratsley granted summary judgment to Micki Delp in 2011, saying that her statements were not defamatory, were not about Scholz, and were not uttered with actual malice.  But the Appeals Court reversed in May 2013, concluding that there were genuine issues of material fact as to each of those elements of the claim.  In August 2013, the Supreme Judicial Court took the case for further appellate review.

The second lawsuit was against the Herald itself, as well as against writers Fee and Raposa.  In March 2013, the Superior Court judge, Frances McIntyre, ruled for the Herald, and later awarded it $132,000 for its deposition costs.  Judge McIntyre declared that, as to the reasons for Delp’s suicide, “That secret went to the grave with him.  Any views on the subject would necessarily be opinions.”  Scholz appealed, and the Supreme Judicial Court decided to hear that appeal as well.

It does appear that the relationship between Brad Delp (and his family) and Scholz was a strained one at best, and it’s telling that Scholz was not invited to Brad’s funeral.  Still, there were numerous clues indicating that the real motivation behind Delp’s decision to commit suicide might have had little or nothing to do with Fran Cosmo having been disinvited from the summer tour.  Delp had suffered from depression for a long time, and he left a suicide note that wrote, in French and English, “I am a lonely soul.”  It also said, “I take complete and sole responsibility for my present situation,” and that he had lost his “desire to live.”  Only nine days before his death, it was discovered that Brad had planted a spy camera in the bedroom of his fiancee’s sister, a discovery that had caused him significant shame.

Oral argument took place on November 4, 2014, and the key question was whether the judges should have let a jury decide why it was that Brad Delp took his life – or, more specifically, whether Micki Delp and the Herald should have to pay libel damages for speculating or asserting that Tom Scholz was the reason.  The Supreme Judicial Court took more than a year to decide, but its ruling last week was unambiguous and in line with past case law concerning protection for what the Court described as “nonactionable opinions based on disclosed nondefamatory facts that do not imply undisclosed defamatory facts.”

Justice Fernande Duffly’s opinion for the Court begins with the deceptively simple nostrum that “to be actionable, the statement must be one of fact rather than opinion,” then spends the next 12 pages explaining how one can tell the difference.  The distinction, she says, is to be decided by a jury only “if the statement reasonably can be understood both ways”; otherwise, it can be decided by a judge, and the use of summary judgment procedures is “favored” in defamation cases.

The opinion reprises some established law.  Simply saying “in my opinion” will not turn a factual statement into an opinion.  Rather, the question is whether the statement contains “objectively verifiable facts.”  A court should take into account the full context in which the statement is made, considering all the words that are used.  Attention should be given to the specific language, “whether the statement is verifiable,” the “general context of the statement,” “the broader context in which the statement appeared,” and the use of any “cautionary terms.”

In applying those principles to this case, the Court ruled that the statements at issue were not objectively verifiable: “While we can imagine rare circumstances in which the motivations for a suicide would be manifestly clear and unambiguous, this is not such a case.”  The articles used cautionary terms such as “may have” and “reportedly,” tipping off the reader that the authors were “indulging in speculation.”  The statements appeared in what the Court called an “entertainment news column,” which one would expect to contain “rhetorical flair.”

Notably, Judge Duffly pointed out that the most extreme statements were contained in the headline, then said a reasonable reader would not expect a headline “to include nuanced phrasing.”  Headline-writers, she wrote, quoting a 2009 case from another jurisdiction, are “permitted some drama in grabbing [their] reader’s attention, so long as the headline remains a fair index of what is accurately reported below.”

Scholz had argued that attribution of certain information in the articles to “friends” and “insiders” suggested that the articles were based on defamatory facts that were not disclosed to the reader.  In so arguing, he was relying on the solid body of law establishing that even a statement cast as an opinion will be actionable if it implies “the existence of undisclosed defamatory facts on which the opinion purports to be based.”

But the court rejected that argument, examining the three articles as a whole and concluding that the Herald sufficiently disclosed to the reader the facts on which they were based, including that Brad Delp had “tried to please both sides,” was “always under a lot of pressure,” and had been depressed “for some time.”

Here’s the money quote of the decision, which provides guidance for writers wishing to avoid being named in libel suits.  “By laying out the bases for their conclusions,” Judge Duffly wrote, quoting from a 1993 SJC case, “the articles ‘clearly indicated to the reasonable reader that the proponent of the expressed opinion engaged in speculation and deduction based on the disclosed facts.’”  In other words, if you’re going to express an opinion that may be construed as defamatory, you had better tell the reader how you got there.

The court also ruled against Scholz in the separate action he brought against Micki Delp, holding that Micki’s statements to the Herald “either asserted nondefamatory facts”—such as that Brad was upset about not inviting Cosmo to join the tour—“or were opinions that did not imply undisclosed defamatory facts”—such as that pressure about the band caused Micki to commit suicide.  “Whether Brad’s motive rested, alone or in combination, on any of the reasons propounded by Micki . . . is no longer capable of verification,” Judge Duffly wrote, and “statements that cannot be proved false cannot be deemed statements of fact.”

The decision is a solid victory for the Herald and for the press generally, and will undoubtedly be quoted for years to come.  It was supported by a strong amicus curiae brief filed by the Reporters Committee for Freedom of the Press and 25 other media entities.

If you would like any assistance or need more information, please contact the author of this alert, Robert A. Bertsche,  at 617 456 8018 or



Empowering the Collective Wisdom of the Crowd

On October 30, 2015, the Securities and Exchange Commission (“SEC”) adopted final rules (“Regulation Crowdfunding”) to permit companies to offer and sell securities through crowdfunding without Securities Act registration.

Crowdfunding is internet-based fundraising that consists of funding a project or venture by seeking small individual contributions from a large number of supporters. It has been around for some time now, but because of the requirements of the federal securities laws, companies have been able to offer only “rewards” such as a free or discounted pre-order of their products, or an exclusive screening of a new film in exchange for pledging funds, but the companies could not offer and sell securities to their supporters unless they could comply with exemptions under existing regulations, including “accredited investors” qualification (those who earn at least $200,000 per year, or have a net worth of at least $1 million).

Regulation Crowdfunding now permits these early supporters to invest in securities using crowdfunding transactions subject to certain investment limits. The new rules cap the amount of money an issuer can raise using the crowdfunding exemption, impose disclosure requirements on issuers, and create a regulatory framework for the broker-dealers and funding portals that facilitate the crowdfunding transactions.

Total Investment Amount
The aggregate amount an investor may invest in all crowdfunding offerings during any 12-month period is limited based on his or her annual income or net worth:

  • Individuals with an annual income or net worth of less than $100,000 can invest no more than the greater of (a) $2,000 or (b) 5% of the lesser of his or her (i) annual income or (ii) net worth.
  • Individuals with an annual income or net worth of more than $100,000 can invest 10% of the lesser of his or her annual income or net worth for individuals.

(Note: An investor’s primary residence is not included as an asset in the calculation of net worth.)

Issuer Offering Amount
Under Regulation Crowdfunding, an eligible company is permitted to raise a maximum aggregate amount of $1 million through crowdfunding offering in a 12-month period. A crowdfunded offering will not be integrated with another preceding, concurrent or subsequent exempt offering, provided that each offering complies with the requirements of the exemption that is being relied upon for the particular offering.

Issuer Disclosures
Issuers must file certain information with the SEC on new Form C, and provide this information to investors and the intermediary facilitating the offering. The information includes disclosures of:

  • The price or method for determining price, target offering amount and deadlines;
  • The company’s business and financial condition;
  • The financial statements of the company;
  • The use of proceeds from the offering; and
  • Information about officers and directors as well as owners of 20% or more of the company.
  • In addition, the issuer relying on Regulation Crowdfunding is required to file an annual report with the SEC and provide it to investors.

Required Use of an Intermediary
Regulation Crowdfunding requires that any crowdfunding transactions be conducted exclusively through an intermediary that is registered with the SEC on new Form Funding Portal, and becomes a member of FINRA.

Requirements for Funding Portals
Regulation Crowdfunding requires intermediaries to undertake certain actions, including, but not limited to:

  • Providing investors with educational materials;
  • Taking certain measures to reduce the risk of fraud;
  • Making information that a company is required to disclose available to the public on its platform;
  • Providing communication channels to permit discussions about offerings;
  • Providing disclosure to investors about the compensation the intermediary receives;
  • Accepting an investment commitment from an investor only after the opening of an account;
  • Having a reasonable basis for believing an investor complies with the investment limitations;
  • Providing investors notices once they have made investment commitments and confirmations at or before completion of a transaction;
  • Complying with maintenance and transmission of funds requirements; and
  • Complying with completion, cancellation and reconfirmation of offerings requirements.

In addition, intermediaries are prohibited from engaging in certain activities, such as:

  • Providing access to their platforms to companies that they have a reasonable basis for believing have the potential for fraud or other investor protection concerns;
  • Having a financial interest in a company that is offering or selling securities on its platform unless the intermediary receives the financial interest as compensation for the services, subject to certain conditions; and
  • Compensating any person for providing the intermediary with personally identifiable information of any investor or potential investor.

Only time will tell whether Regulation Crowdfunding’s procedural, informational and compliance requirements will prove to be successful in achieving the dual goal of capital formation and investor protection.
Prince Lobel Tye will be closely monitoring developments as market practices emerge for issuers, investors and intermediaries.

If you have any questions about the information presented here, need assistance with reviewing and updating policies, or would like to learn more about how Prince Lobel can address any of your concerns, please contact:  John F. Bradley, at 617 456 8076 or or 
Matar Diouf, at 617 456 8065 or

Are you Ready for Phase 2 HIPAA Audits?

The Office for Civil Rights (OCR) is expected to begin Phase 2 of its HIPAA audits in January 2016.  The audits will include both Covered Entities and Business Associates of Covered Entities.  The audit protocol focuses on Privacy Rule requirements, Security Rule requirements for administrative, physical, and technical safeguards, and Breach Notification Rule requirements.  If you are a Covered Entity or a Business Associate of a Covered Entity, now is the time to review your privacy and security policies and procedures to ensure that you will be prepared if you are selected for an audit by the OCR.

Covered Entities

Do you have comprehensive written HIPAA policies and procedures in place to deal with Protected Health Information (“PHI”)?

Do they include written security policies and procedures to deal with electronic PHI (ePHI), i.e., PHI transmitted by electronic media or maintained in electronic media?

Do you have Business Associate Agreements with all of your Business Associates?

Have your Business Associate Agreements been updated to include the requirements of the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”), which was enacted as part of the American Recovery and Reinvestment Act of 2009 (“ARRA”)?

Have you conducted a comprehensive risk assessment to identify potential weaknesses in privacy and security safeguards, taken steps to mitigate those weaknesses, and revised your HIPAA policies and procedures to reflect those steps?

Have you implemented a risk management program which includes an assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI?

Business Associates

Do you understand your responsibilities under the Privacy Rule and the Security Rule?

Do you have written policies and procedures in place to deal with PHI?

Do they include written security policies and procedures to deal with ePHI, i.e., PHI transmitted by electronic media or maintained in electronic media?

Do you have written agreements with subcontractors to ensure that they comply with the Privacy Rule and the Security Rule?

Have you conducted a comprehensive risk assessment to identify potential weaknesses in privacy and security safeguards, taken steps to mitigate those weaknesses, and revised your HIPAA policies and procedures to reflect those steps?

Have you implemented a risk management program which includes an assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI?

Among other things, Covered Entities and their Business Associates need to implement device and media control policies to ensure proper encryption of mobile devices and electronic media containing ePHI if they are taken into and out of facilities.  Last month, the OCR reported that a radiation oncology private physician practice paid $750,000 to settle potential violations of HIPAA after a laptop bag was stolen from an employee’s car.  The bag contained the employee’s computer and unencrypted backup media containing ePHI.  The practice had not conducted an enterprise-wide risk analysis and did not have written policies related to the removal of ePHI into and out of its facilities.


If you have any questions concerning HIPAA or would like assistance in updating your HIPAA policies and procedures, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice and the author of this alert. You can reach Rochelle at 617 456 8036 or

Temporary Restraining Order Prevents CMS from Recouping Alleged Medicare Overpayment from Hospice

With the backlog to receive a hearing before an Administrative Law Judge (ALJ) as long as 3 to 5 years, health care providers facing significant recoupments of alleged overpayments should consider whether to pursue additional remedies.

The United States District Court for the Southern District of Georgia recently issued a temporary restraining order enjoining the Centers for Medicare and Medicaid Services (CMS) from collecting an alleged Medicare overpayment from a hospice pending a hearing before an ALJ.  Hospice Savannah, Inc. v. Burwell, 4:15-cv-00253-JRH-GRS, September 21, 2015.  The hospice was a not-for-profit organization that provided services to terminally ill patients and their families.  It had filed appeals through the two initial levels of administrative review.  The next level of administrative appeal involved an ALJ hearing, but due to the administrative backlog, it was likely that the hospice would not receive a hearing for 3 to 5 years, instead of the 90 day period provided by statute.  In the meantime, CMS intended to recoup 100% of the hospice’s current and future Medicare payments (approximately 80% of the hospice’s total revenues), amounting to $8.6 million dollars.  The amount was the result of an extrapolation based on a review of a sample of 100 claims for 95 beneficiaries, for which there was an alleged overpayment of $152,000.

Applying the standards for granting a temporary restraining order, the District Court found:

  • There was a substantial likelihood that the hospice would succeed on the merits because of a “questionable extrapolation” across the universe of patient claims that led CMS to conclude the hospice owed $8.6 million dollars and the fact that the services corresponding to the payments CMS intended to recoup had never been challenged by CMS.
  • The hospice would suffer irreparable harm without the proposed temporary restraining order by being forced to close and by being unable to provide ongoing care to its current hospice patients who were terminally ill and disabled. The risk of  harm of not granting immediate relief to the hospice and its patients was great.
  • There was little or no risk of harm to CMS since, at worst, CMS would be deferred in its ability to pursue collection efforts pending resolution of the hospice’s administrative appeals. CMS had not alleged fraud or any facts to suggest that the hospice was diverting or secreting assets or would do so pending resolution of its administrative appeals.
  • The public had an interest in terminally ill patients being able to continue to have access to the hospice’s services.


If you have questions about Medicare overpayments or require any assistance in responding to a notice of overpayment or determining whether to pursue additional remedies, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice and the author of this Alert.  You can reach Rochelle at 617 456 8036 or

Media Forced to Pay State Agency to Do Its Job

Notwithstanding broad support among members of the public and legislators, a desperately-needed bill to reform the Massachusetts Public Records Act has been on hold in the legislature since late July.  Sponsors of the bill have been working to address objections of the Massachusetts Municipal Association that its new limitations on fees would amount to an “unfunded mandate.”  As that debate continues, an investigative report by the New England Center for Investigative Reporting (NECIR) and the Boston Globe on September 19 highlights just how outrageous—and even dangerous—the public records fee charges under current law can be.

In December 2013, NECIR’s investigative reporter Jenifer McKim submitted a request to the Department of Children and Families (DCF) for documents about all child deaths linked to abuse or neglect during the years 2011, 2012 and 2013.  The records shouldn’t have been hard to compile.  The federal Child Abuse and Prevention Treatment Act (“CAPTA”) requires each state receiving federal child protection funding to disclose information about any cases “of child abuse or neglect which [have] resulted in a child fatality or near fatality.”  42 U.S.C. § 5106a(b)(2)(B)(x).  Massachusetts receives about $500,000 in CAPTA funds every year.

Notwithstanding this federal requirement, DCF told McKim that it would take many hours to compile the information, and that the agency would charge NECIR for the time.  McKim therefore narrowed her request to just one year, 2013, in the hopes of speeding up the process.  DCF then provided its “good-faith” estimate of the cost for that one year period:  $2,023.00, comprising 67 hours of a paralegal’s time at the rate of $30.19 per hour.

McKim appealed this fee estimate to Supervisor of Records Shawn Williams at the Secretary of State’s Office.  She noted that she was only seeking federally-required information, and argued that if DCF’s files “are not kept in a manner that would allow the ready retrieval of such critically important information as which children have died of neglect on DCF’s watch, a requesting entity like NECIR should not be required to foot the bill.”  On April 29, 2014, Williams responded, in essence, “yes, you should.”  He upheld the fee estimate as “reasonable” precisely because DCF hadn’t yet compiled the federal CAPTA information.  “[T]he Department’s report lags about two years behind when [fatality] incidents occurred,” Williams explained, and therefore “the Department would need to review every available case in order to determine which information” might relate to a death from abuse or neglect.  Thus, Williams’ ruling essentially required NECIR, a non-profit investigative newsroom, to pay DCF to assemble the fatalities information that it was required to report anyway, on a subject at the very heart of the agency’s mission.

In August, 2014, NECIR teamed up with the Boston Globe and was able to expand its request for fatalities data to five years, from 2009 through 2013.  To its credit (I suppose), DCF did not increase its fee estimate five-fold—instead it doubled it, to $4,468.  The charge was paid in August 2014, but then it took five months—and perhaps not coincidentally, a change in the administration—for the agency to actually begin producing the records.  DCF unloaded the first three years of fatalities data in January 2015, and the rest in March.

The records, as you might expect, are important.  Among other things, they show that at least 110 children died of abuse and neglect during between 2009 and 2013 in Massachusetts.  Of these, 38 had previously received DCF services, and 26 were under DCF supervision at death. In a number of those cases, DCF had assigned the child to a “low risk” track, a designation advocates say ensures some at-risk children will fall through the cracks.  NECIR also published an online interactive display of each of the lost children, complete with heartbreaking photographs and biographical details.  Much like the recent identification of “Baby Doe” as Bella Bond, NECIR’s report puts names and faces on what would otherwise be cold statistics.

If the public records bill, H. 3665, had been in effect last year, it would have prevented DCF from shifting full cost of compiling this important information onto the media.  The bill provides that “[r]ecords shall be furnished without any charge or at a reduced charge if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government and is not primarily in the commercial interest of the requester.”  It would be hard to argue that the disclosure of these records was not “likely to contribute significantly to public understanding of [the] operations” of DCF. Additionally, in July, Gov. Baker issued a modest directive to state agencies to streamline their public records fee practices by providing the first four hours of agency search and retrieval work at no cost and limiting hourly rates to no more than $25.00.  His directive also states that even where entire databases of information are requested, the production delay should not exceed eight weeks.

We are fortunate that NECIR and the Globe had the resources to pay DCF $4,500 for these important records.  But as McKim reports, advocates for children are worried that such high price tags could be prohibitive to watchdog groups in the future, preventing needed reforms and putting more children at risk.  Will the legislature be content to let such important information go unreported unless a private party can pay the government to do its job?  Or will it instead enact the reforms necessary to allow the public to evaluate how its government is performing?  We should all hope for, and work for, the latter.

-Jeffrey J. Pyle


If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your media law concerns, please contact Jeffrey Pyle, the author of this post, at 617 456 8143 or, or click here to contact any of the attorneys in the firm’s Media Law practice group.

Massachusetts Medical Marijuana Law – Issues Facing Employers

On November 16, 2012, Massachusetts became the 18th state to approve the use of marijuana for medical purposes.  Chapter 369 of the Acts of 2012, which became law on January 1, 2013, allows qualifying patients with certain medical conditions and debilitating symptoms to use marijuana for medical purposes.  The Massachusetts Department of Public Health adopted regulations to implement the law on May 8, 2013.[1]

At least one employment discrimination complaint has been filed with the Massachusetts Commission Against Discrimination (MCAD) related to the use of marijuana for medical purposes since the passage of the law.  In May 2015, a 34-year old woman suffering from Crohn’s disease filed a complaint with MCAD over her termination from a marketing position when a drug test revealed marijuana use.  In the complaint, she alleges she disclosed that she takes marijuana for medical use during her employment interview.  The MCAD has not yet issued a decision in the case.

The rapidly changing medical and legal landscape with respect to marijuana use presents Massachusetts employers with some complex challenges.

What Do Employers Need to Know about the Massachusetts Medical Marijuana Law?  

To qualify to use marijuana for medical purposes, a person must be:

  1. A Massachusetts resident, at least 18 years old, who is diagnosed by a Massachusetts licensed certifying physician as having a debilitating medical condition, or
  2. A Massachusetts resident, under 18 years old, who is diagnosed by two Massachusetts licensed certifying physicians, at least one of whom is a board-certified pediatrician or a board-certified pediatric subspecialist, as having a debilitating medical condition that is also a life-limiting illness.

Under the Department of Public Health’s regulations, debilitating medical conditions include: cancer, glaucoma, HIV positive status, AIDS, Hepatitis C, Amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, and Multiple sclerosis (MS).

Patients qualified to use marijuana for medical purposes must obtain a registration card from the Massachusetts Department of Public Health.  The registration card is valid for one year from the date of issue.

Both the statute and the Massachusetts regulations contain a similar limitation with respect to the employment setting: that the law does not limit an employer’s rights under other laws and that an employer need not accommodate any on-site use of marijuana.

Does the New Law Permit Workplace Use or Being Under the Influence at Work? 

It seems quite clear from the statute and regulations that the intent was to leave Massachusetts employers with the flexibility to prohibit workplace use of marijuana or being under the influence of marijuana while at work.  There is nothing in the Massachusetts medical marijuana law that prevents employers from prohibiting employees from working while under the influence of marijuana, and the regulations seem to specifically create a zone of employer discretion in this regard.

Moreover, although no Massachusetts court has yet decided the issue, courts in other states with legalized medical marijuana have consistently found that employers may continue to enforce drug-testing policies that screen for the use of marijuana.  These courts have also upheld the employer’s right to terminate a current employee who tests positive for use of medical marijuana, whether or not the employee was working while under the influence.

Also, there are certain settings where an employer is required to prohibit the possession or use of marijuana in the workplace.  For example, under the Drug Free Workplace Act of 1988, some Federal contractors and all Federal grantees must agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.  The prohibited drugs are those that are controlled substances under the Federal Controlled Substances Act, which includes marijuana.  The use of medical marijuana may also be illegal under other Massachusetts laws, such as Mass. General Laws, Chapter 90, § 24, which prohibits operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances.

In short, the new law in and of itself does not require Massachusetts employers to tolerate use, possession, or being under the influence, of marijuana in the workplace.  But that is not necessarily the end of the inquiry because an employer must consider how the new law intersects with existing disability accommodation obligations.

Does an Employer Need to Tolerate Use of Medical Marijuana as a Reasonable Accommodation? 

Under the Federal Americans with Disabilities Act (ADA), it appears reasonably clear that an employer does not need to grant an accommodation for the use of drugs that are illegal under Federal law.  The ADA specifically provides that a person currently using illegal drugs is not a qualified individual with a disability and thus is not protected by the ADA.

A Massachusetts employer’s rights, however, could be limited by the Massachusetts anti-discrimination statute (M.G.L. c. 151B, § 4(16)), which -like the ADA- requires an employer to provide a reasonable accommodation to a qualified individual with a disability.  The Massachusetts anti-discrimination statute does not contain the same exclusion as the Federal statute for those currently using illegal drugs.

The question of whether a Massachusetts employer must consider an accommodation allowing an employee’s off-site use (the new law expressly allows an employer to prohibit on-site use) of medically prescribed marijuana, at least where the employee is not under the influence at work, is an unsettled issue.  Among other questions, the courts will have to decide whether the limiting language in the Massachusetts medical marijuana law (preserving an employer’s rights and specifically noting that on-site use does not need to be accommodated) is intended to leave the employer with the flexibility to deny an accommodation that involves the use of medical marijuana.  There are also Constitutional questions about the supremacy of the Federal Controlled Substances Act.

Courts in other states have tended to leave employers with the right to deny such accommodations.  While that seems the likely outcome in Massachusetts as well, it is simply too early to predict how this looming legal battle with play out in the Massachusetts courts.

Of course, it is not permissible for an employer to make an adverse employment decision based on an employee’s or candidate’s underlying medical condition, which he or she happens to be treating with marijuana.  Indeed, the Massachusetts’ anti-discrimination statute prohibits an employer from asking a candidate about any treatments used for his or her medical conditions or diseases.  This issue has arisen in a number of cases around the country where the employee has claimed that the motivating factor in the employer’s decision was his or her disability and not the use of medical marijuana.  The watchword for employers is, as in most employment law situations, consistency.  If employers treat the use of marijuana consistently, they are unlikely to face a viable claim of pretextual decision-making.

[1] The regulations are codified at 105 CMR 725.000 et seq.

If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Daniel S. Tarlow, the author of this Alert and Chair of Prince Lobel’s Employment Law Practice Group at 617 456 8013 or, or Rochelle Zapol, a partner in Prince Lobel’s Health Care Practice Group at 617 456 8036 or

Dan Tarlow       Zapol

We’re Moving! Prince Lobel Relocation News

Prince Lobel Tye LLP proudly announces its move to One International Place in Boston. The firm will relocate from its home (since 2006) at 100 Cambridge Street.

The move, which was prompted by the shifting office rental market in Boston, will allow Prince Lobel to retain its core values and reaffirm its commitment to expertly serving client needs. The new location is being designed with the goal of fostering a more collaborative and connected work environment.

Prince Lobel plans to transition to its updated space in 2016. Its attorneys will continue to serve the firm’s diverse array of clients in a wide variety of practice areas and industries, including corporate, construction, domestic relations, data security and privacy, employment, environmental, estate planning, health care, intellectual property, insurance/reinsurance, litigation, media and First Amendment, real estate, social media, nanotechnology, renewable energy, telecommunications, and copyright, trademark and intellectual property.

Prince Lobel Managing Partner Craig M. Tateronis stressed that the firm will retain the value, quality and efficiency its clients have come to expect. “Our new location will only enhance client service and the firm’s commitment to being an active member of its community,” said Tateronis. “Our space has always been a vital connection point with our clients, employees and visitors. Especially now, with law firm space design rapidly evolving, we are excited to design a new home that is on the cutting edge of innovation within our profession and reflects the unique energy and culture of our firm.”