Massachusetts Supreme Court Rules for Employee Fired for Medical Marijuana Use
Author: David B. Weisenfeld, XpertHR Legal Editor
July 21, 2017
The Massachusetts Supreme Judicial Court has ruled that a newly-hired employee who was terminated because she tested positive for marijuana use can sue her former employer for handicap discrimination. Christina Barbuto suffers from Crohn's disease and her physician had provided her with a written certification allowing her to use marijuana for medicinal purposes. Medical and recreational marijuana use is legal in Massachusetts in limited amounts.
In its ruling in Barbuto v. Advantage Sales and Marketing, the court rejected the employer's argument that it could not accommodate the plaintiff because her continued use of medical marijuana is a federal crime. It also dismissed the employer's contention that it owed the plaintiff no obligation to participate in an interactive process to identify a reasonable accommodation before firing her.
Writing for the court, Chief Justice Ralph Gants noted that the Massachusetts Medical Marijuana Act makes clear that it does not require "any accommodation of any on-site medical use of marijuana in any place of employment." Chief Justice Gants said this limitation implies that off-site medical marijuana use might be a permissible accommodation.
Barbuto did not report to work in an intoxicated state, nor did she use marijuana in the workplace. Nonetheless, her employer's HR representative told Barbuto that she was terminated for testing positive for marijuana.
Courts elsewhere generally have ruled for employers in cases in which they have fired an employee or prospective employee for failing a drug test because of medical marijuana use. However, the tide may be turning. In May, a Rhode Island court ruled in favor of a medical marijuana cardholder a company refused to hire for a paid internship because she could not pass a preemployment drug test.
Medical marijuana is legal in 29 states, so this issue bears continued watching as cases continue to arise in the courts.