The following story was originally published in the October 2017 issue of Marijuana Venture, on sale now at Barnes & Nobles, Hudson News, Chapters, Indigo and many other fine retailers near you.
In 2014, Cristina Barbuto told her new employer that she would flunk its mandatory pre-employment drug test, because she had been using medical marijuana two to three times per week to manage her Crohn’s disease.
Barbuto was told by a supervisor that it would not be a problem, but the company fired her just a few days after starting the new job. A human resources person told her that she was fired because the company, Advantage Sales and Marketing (ASM), complied with federal law by deeming marijuana illegal. In other words, ASM reasoned that Massachusetts state law, which allows for medical marijuana use, does not supersede the federal Controlled Substances Act, making marijuana an illegal substance.
Barbuto brought several claims against ASM, including handicap discrimination. She identified herself as a qualified handicapped person, who was capable of performing the essential functions of her job with a reasonable accommodation — a waiver of ASM’s drug-free policy. ASM argued that the use of any marijuana, whether medical or not, was still a federal crime.
After the Suffolk County Superior Court dismissed Barbuto’s case, she appealed to the Supreme Judicial Court. On July 17, the Supreme Judicial Court ruled that employers in Massachusetts may not terminate an employee just because they use medical marijuana outside of work hours. According to the court, the medically authorized use of cannabis is as lawful as the use of any other prescribed medication, and employees may assert claims of handicap discrimination under state law against employers who fail to accommodate such use.
The court specifically said that the only person who risks being arrested for marijuana is the employee who consumes it, not the employer. Thus, an employee who tests positive for legitimate medical marijuana use is not, in and of itself, an undue burden on the employer in terms of disability accommodation.
The Supreme Judicial Court determined that employers have a duty to engage with the employee in a process of trying to determine whether there is an equally effective and legal medication that could work in place of marijuana. The fact that ASM did not engage in the process of working with Barbuto to find out if a reasonable alternative to cannabis existed was declared by the Supreme Judicial Court to be sufficient evidence to support a claim of handicap discrimination.
When an equally effective substitute for marijuana does not exist, it is then the employer’s burden to prove that the use of marijuana by the employee would cause an undue burden to the employer’s business. The court cited certain specific examples that would meet the definition of undue burden, including employers who have federal contracts that require a drug-free workplace and employers in the transportation industry who are subject to Department of Transportation regulations, which forbid the use of marijuana by employees in safety-sensitive positions.
The case will now go back to the Superior Court. Even if Barbuto loses, the Supreme Judicial Court ruling is still a huge victory for medical marijuana patients. Employers in Massachusetts are officially on notice that legitimate medical marijuana use by employees must be accommodated or must be proven to present an undue burden on the business.
Brenda Wells, Ph.D., is the Robert F. Bird Distinguished Professor of Risk and Insurance at East Carolina University and the owner of Risk Education Strategies. She has published articles on the risk management implications of cannabis legalization and is an expert in the risk management and insurance field. She can be reached at brenda@riskedstrategies.com
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