Massachusetts Court: Employees Can’t be Fired for Using Medical Cannabis

Following up on a hot button issue this week: In a first of its kind ruling, the Massachusetts Supreme Judicial Court decreed on Monday that employers in the state cannot fire employees for medical cannabis use.

Cristina Barbuto was fired after her first day at Advantage Sales and Marketing after she testing positive for marijuana. Barbuto has a prescription for medical marijuana to treat Crohn’s disease, something she disclosed to the company after being told that she would need to take a mandatory drug test. Barbuto’s supervisor told her twice that her cannabis use shouldn’t be a problem, as long as she didn’t use it before or during work.

But after she’d completed her first day of work, an HR representative told her that her employment was terminated because, “We follow federal law, not state law.”

Barbuto filed suit against the employer, claiming that her termination violated state anti-discrimination laws. The case reached the state supreme court after being dismissed in 2015. Similar cases have been filed in the past, but have often ruled against the employee.

In this ruling, the state supreme court said 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.”

Similar cases have been tried in Colorado, California, Washington, and Montana. In each, the court ruled that employers could fire workers for legal, off the clock, cannabis use because it is still illegal under federal law.

“I can’t stress this enough, it’s the first case of its kind in the country,” said Dale Deitchler, a shareholder at world’s largest labor and employment law firm and an expert on marijuana issues in the workplace.

“Massachusetts is not a state where such protections are written in the law so this is really significant,” Deitchler said. “The court created law.”

The ruling means that the case will be sent back to the Suffolk County Superior Court, the court that initially dismissed Barbuto’s suit.

The justices concluded that, “An employee’s use of medical marijuana under these circumstances is not facially unreasonable as an accommodation of her handicap.” However, “it does not necessarily mean that the employee will prevail in proving proof of handicap discrimination”, If accommodating an employee’s medical cannabis use, “would create undue hardship” on an employer.”

“Undue hardship” would apply, for example, in the transportation industry, where cannabis use would impair an employee’s ability to do their work or endanger public safety. Past cases have been with employees with less physically stressful jobs so this ruling has not yet applied. Let’s hope this means a step forward for cannabis patients’ rights!

 

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