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The intersection of medical marijuana and a drug-free workplace

Lawsuits are being decided in Massachusetts and across the country on this controversial issue.

A Bay State court has thrown out the disability discrimination claims of an employee fired for failing a drug test that was positive because she had legally ingested medical marijuana for a medical condition outside of work. Some courts in other states have had similar holdings, confirming an employer’s right to a drug-free workplace despite state laws allowing medicinal marijuana in the shadow of the drug still being a Schedule I illegal drug under federal criminal law.

A Brewster, Massachusetts, resident who had a legal prescription under state law for medical marijuana to help her deal with the painful gastrointestinal symptoms of Crohn’s disease was fired from a new job for failing a drug test that showed the presence of the drug in her system. She was let go even though she had told them up front that she would fail because of the medical treatment.

In September 2015, after having filed a discrimination charge with the Massachusetts Commission Against Discrimination, the state agency known as MCAD, the employee brought the lawsuit Barbuto v. Advantage Sales and Marketing in the Superior Court in Suffolk County against the former employer and one of its employment recruiters.

The suit alleged three counts of disability discrimination under state law based on her Crohn’s disease for failure to provide a reasonable accommodation and related claims, for violation of the state’s medical marijuana law, for unlawful termination in violation of public policy and for invasion of privacy for the urine test. She requested to be reinstated and awarded damages for emotional distress, lost wages and lost benefits, and harm to her reputation, as well as legal fees, costs and interest.

The court’s docket shows that in June 2016, all claims were dismissed except for the invasion of privacy charge, which will proceed. The docket also indicates that the matter has been appealed, so the important disability discrimination allegations may be reconsidered by a higher court.

According to the Employers Association of the Northeast or EANE website, the court in dismissing most of the counts reasoned:

  • The duty of a private employer to reasonably accommodate a disability does not include the use of medical marijuana even if it is legal under state law.
  • The state medical marijuana law does not create the right to sue an employer for wrongful termination, even though it protects such patients from state criminal prosecution.
  • The medical marijuana law does not recognize a public policy that would prevent an employer from firing a worker who legally ingests medicinal marijuana.
  • The court pointed to similar decisions in other states with a nod to the drug’s continued federal illegality.

This case illustrates an evolving and important issue of employment law. Any employee who experiences negative treatment at work because of his or her use of medical marijuana should speak with an attorney about potential legal remedies. On the other hand, any Massachusetts employer with legal questions about how to treat an employee or job applicant who uses medical marijuana should seek legal counsel about how to proceed as well as how to respond to accusations of discrimination in such a situation.

The attorneys at the Boston office of The Employee Rights Group, LLC represent both employees and employers in matters related to job termination, discrimination and other employment law matters.

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