Written By ESR News Blog Editor Thomas Ahearn
On July 17, 2017, the Massachusetts Supreme Judicial Court ruled that employers cannot fire employees with prescriptions for medical marijuana – the use of which voters in the state approved in 2012 – simply for flunking drug tests and even though marijuana is still illegal to use under federal law.
In the ruling for BARBUTO vs. ADVANTAGE SALES AND MARKETING, LLC, Supreme Judicial Court Chief Justice Ralph D. Gants wrote that “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.”
Chief Justice Gants ruled that Advantage Sales and Marketing (ASM), a California sales and marketing firm, discriminated against the plaintiff Cristina Barbuto, an entry-level employee at its Massachusetts operation who used medical marijuana to treat a gastrointestinal condition known as Crohn’s disease.
The plaintiff told ASM that she would test positive for marijuana and “explained 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.”
The plaintiff submitted a urine sample for the mandatory drug test in September 2014. After completing her first day of work, she was terminated for testing positive for marijuana and was told ASM did not care if she used marijuana to treat her medical condition because “we follow federal law, not state law.”
The plaintiff filed a verified charge of discrimination against ASM with the Massachusetts Commission Against Discrimination (MCAD), which she withdrew to file a complaint in the Superior Court that had six claims including handicap discrimination and denial of the “right or privilege” to use marijuana lawfully.
Under ‘An Act for the humanitarian medical use of marijuana,’ 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.”
Under Massachusetts G. L. c. 151B, it is unlawful for any employer to dismiss from employment or refuse to hire because of a handicap, “any person alleging to be a qualified handicapped person who is capable of performing the essential functions of the position involved with reasonable accommodation.”
The issue was whether a qualifying patient terminated from employment for a positive drug test due to her lawful medical use of marijuana has a civil remedy against an employer. The Court concluded the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B.
The case is now remanded to the Superior Court for further proceedings consistent with this opinion. The ruling in BARBUTO vs. ADVANTAGE SALES AND MARKETING, LLC is available at www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/12226.pdf.
The ruling in Massachusetts goes against a decision in a similar case in Colorado. As reported by ESR News in June 2015, the Colorado Supreme Court affirmed the rulings of lower courts in a 6-0 decision that employers can fire employees for the use of off-duty medical marijuana.
The plaintiff in Coats v. Dish Network, LLC had a medical marijuana card and used marijuana off-duty to control muscle spasms. He challenged company policy after he was fired in 2010 for failing a drug test by claiming his use of marijuana was legal under state law even though it was illegal under federal law.
However, the firing was upheld in both trial court and the Colorado Court of Appeals. The case questioned whether the use of medical marijuana in compliance with the Colorado Medical Marijuana Amendment was “lawful” under the state’s Lawful Off-Duty Activities Statute.
The fact that employers who drug test in the workplace will have to deal with growth of state laws allowing the use of recreational and medicinal marijuana was Trend Number 9 on the Employment Screening Resources® (ESR) 10th annual ‘ESR Top Ten Background Check Trends’ for 2017.
“For employers who drug test, the national trend towards legalization of marijuana for medicinal and recreational purposes will be a critical workplace issue that will require attention, especially given state conflicts with federal law,” says ESR founder and CEO Attorney Lester Rosen, who selected the trends.
As of July 2017, a total of 29 U.S. states, the District of Columbia, Guam, and Puerto Rico allow public medical marijuana and cannabis programs, according to the National Conference of State Legislatures (NCLS) website. Some states also passed laws allowing for the recreational use of marijuana by adults.
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