The top court in Massachusetts has ruled in favor of an employee who was fired for using medical marijuana recommended by her doctor. The decision could have a huge effect on employers dealing with  medical marijuana cardholders in states that have legalized the drug for medical purposes.

The Case

Cristina Barbuto was hired into an entry level position by Advantage Sales and Marketing in the late summer of 2014 to demonstrate clients’ products in grocery stores. After offering Barbuto the job, an ASM representative left her a message telling her that she was required to take a mandatory drug test. Barbuto told the supervisor that she would test positive for marijuana, explaining that she suffers from Crohn’s disease, a debilitating gastrointestinal condition. She went on to explain that she was a qualifying medical marijuana cardholder under Massachusetts law and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes. Barbuto went on to explain that 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. She said using marijuana two or three times a week after work had helped her gain fifteen pounds and maintain a healthy weight. She assured her supervisor that she did not use marijuana daily and would not consume it before work or at work.

In response, 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. The supervisor later telephoned Barbuto and confirmed that her lawful medical use of marijuana would not be an issue with the company.

On September 5, 2014, Barbuto was subject to a mandatory urine drug test. A few days later she went to an ASM training program, where she was given a uniform and assigned a supermarket location where she would promote the products. On September 12th Barbuto completed her first day of work, but that evening ASM’s Human Resources representative terminated her for testing positive for marijuana. The HR representative 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 the HR representative with the Massachusetts Commission Against Discrimination, and later filed suit in the Massachusetts Superior Court, alleging handicap discrimination under Massachusetts law, a private right of action under the Massachusetts Medical Marijuana Act and various other state law claims which were dismissed, except for an invasion of privacy claim. Barbuto then appealed directly to the Massachusetts Supreme Court.

RELATED WEBINAR: 30 Minute Marijuana Update and Q&A 

The Ruling

On July 17th the Massachusetts Supreme Court ruled in favor of Barbuto, holding as follows:

“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.”

Chief Justice Ralph Gants also wrote in the Court’s opinion, “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.”

However, the Court left open three Employer Safe Harbors for Marijuana Prohibitions as presenting possible undue hardships for an employer:

1.  “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.”
2.   “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.”
3.  “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.”

Common Sense Counsel  

Marijuana Proofing your Drug Free Workplace Policy just got more complicated. But taking these steps now will reduce the risk of a successful employee challenge:  

1. Update job descriptions to include “safety sensitive positions” and the “ability to work in a constant state of alertness and safe manner” as an essential job function;
2. Update the drug-free workplace policy to bring it into compliance with state laws and to include “pre-duty impairing effects” disclosure language as part of a “safety rule”;
3. Treat all impairing effect medications equally to avoid a medical marijuana discrimination/not compassionate/handicap discrimination claim;
4. Engage in an interactive discussion with MM Cardholders in the states with sticky medical marijuana laws, like Massachusetts;
5. Use a company retained MRO/Occupational Physician to address the employee’s physician “most effective medication” claim and to also address the impairing work related effects of Marijuana;
6. Make employees aware of Marijuana drug free contractual commitments, gate entry requirements and restrictions that would adversely affect your company’s right to do business; and
7. Make it all about safety in your policy, written documentation, training and evaluation of your workplace concerns.  

For More Information

On August 16th, 2017, EBI and attorney Tommy Eden presented a brief explanation of what this means for your organization’s policies, and gave listeners the opportunity to ask Tommy questions directly. You can watch the recording for free here: