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.
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
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:
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:
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:
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA. He is a member of the ABA Section of Labor and Employment Law, and drafts state compliant drug-free workplace programs for employers in all 50 states. You can read more of Tommy's blogs at www.alabamaatwork.com, and can reach him directly at email@example.com or 334-246-2901.