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Medical Marijuana Users Cannot Be Fired for Positive Drug Tests in Massachusetts

State supreme court finds handicap discrimination laws apply to medical cannabis

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• July 18, 2017 2:52 pm

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Medical marijuana users are now a protected class in Massachusetts after the state's highest court declared that workers dismissed for positive drug tests can launch anti-discrimination suits against their former employers.

The Massachusetts Supreme Judicial Court unanimously ruled on Monday that workers who have been fired from their jobs because of failed drug tests "may seek a remedy through claims of handicap discrimination," though it stopped short of holding that such firings qualify as "wrongful termination." The court ruled that granting exemptions to drug testing for medical marijuana patients represented a "reasonable accommodation" for employers to make.

"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 Ralph Gants said in the ruling. "The company's policy prohibiting any use of marijuana is applied against a handicapped employee who is being treated with marijuana by a licensed physician for her medical condition, the termination of the employee for violating that policy effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination."

Massachusetts voters approved medical marijuana in a 2012 ballot initiative. Cristina Barbuto was offered an entry-level direct marketing position with Advantage Sales & Marketing, LLC, in 2014. Barbuto informed her new employer that she was prescribed medical marijuana to help treat irritable bowel syndrome and Crohn's Disease, a chronic condition that inflames the digestive tract. Although a supervisor attempted to reassure her that her prescription "should not be a problem," she was terminated after completing her first day of work due to failing the company's mandatory drug test.

"We follow federal law, not state law," the company's HR representative said.

Advantage Sales & Marketing, which is the 10th largest marketing firm in the country, had argued that it was an unreasonable accommodation because such a claim would force it to adopt separate policies for its offices across the country. The Court dismissed the notion that federal law should trump policies approved by Massachusetts voters.

"To declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions," the Court ruled.

Other courts have concluded that medical marijuana laws do not protect the employment prospects of patients and that it is unreasonable to require businesses to make accommodations in their drug testing. Federal courts in Colorado, New Mexico, and California have rejected anti-discrimination claims filed by medical marijuana patients.

"Medical marijuana is not an accommodation that must be provided for by the employer. Tractor Supply did not terminate [the plaintiff] because of his serious medical condition, as marijuana use is not a manifestation of HIV/AIDS, nor is testing positive for marijuana conduct that resulted from Mr. Garcia's serious medical condition," the U.S. District Court of New Mexico ruled in 2016.

The California judiciary has also denied employment lawsuits related to medical marijuana. In 2008, the state's Supreme Court dismissed a claim from a patient, saying that the 1996 ballot initiative legalizing medical marijuana failed to include worker protections.

"Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees," the California court ruled. "Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions."

Other states, such as Delaware and Connecticut, have specified that employers must accommodate medical marijuana users in their laws legalizing the practice. The Massachusetts ballot measure, like that of California, did not address employment-related protections related to legalization. Barbuto's attorney, employment lawyer Michael Fogelman, praised the court for interpreting the law beyond the strict language of the ballot initiative.

"A court for the first time has interpreted workplace protections not explicitly stated in a voter-approved ballot measure. This ruling has great import in and beyond Massachusetts on workplace rights of medical marijuana patients," Fogelman said in a statement. "Just as society has come a long way in recognizing the medicinal value of marijuana, employers must evolve in assuring protections necessary for marijuana patients to enjoy equal treatment regarding their choice of medicine."

ASM attorney Michael Clarkson, the chair of Ogletree Deakins' Drug Testing Practice Group, said that the company is now "weighing its options" in the wake of the ruling. The company, which is in the midst of launching an initial public offering, maintains that it followed the law and is confident that it will win out in civil court.

"We’re pleased that the court ruled in our favor with regard to two of the plaintiff’s claims. We are disappointed with the reversal and remand of the remaining claim," Clarkson said. "We have not yet had the opportunity to litigate the plaintiff’s remaining claim on the merits, but we are confident that our client acted in accordance with the law. We are weighing our options."

Advantage Sales & Marketing did not return request for comment.

The landmark decision in Massachusetts could lay the groundwork for future suits. Massachusetts voters approved the legalization of recreational marijuana in a 2016 ballot initiative. However, the state Supreme Court noted in its decision that the recreational marijuana "initiative is irrelevant to this appeal."

Published under: Marijuana, Massachusetts