Massachusetts Court Rules in Favor of Employee Fired for Using Medical Marijuana

Law Firm Newswire




San Francisco, CA (Law Firm Newswire) October 13, 2017 – Massachusetts’ highest court recently decided that a woman could sue her former employer for disability discrimination after she was fired for using medical marijuana. The landmark decision could set a precedent for other states where medical marijuana is authorized under state law, like California.

Plaintiff Christina Barbuto was fired after one day of working at Advantage Sales and Marketing in 2014 because she tested positive for marijuana. Barbuto’s doctor had certified her for medical marijuana to treat the loss of appetite resulting from her irritable bowel syndrome and Crohn’s disease.

“The Massachusetts court decision represents a terrific win for employees who suffer from disabling medical conditions which require use of medical marijuana,” commented attorney Jason Erlich of McCormack and Erlich, an employment law firm based in San Francisco, California. “Under federal law — and many state laws, including California’s Fair Employment and Housing Act — an employer must provide a reasonable accommodation for any disabled employee as long as the accommodation does not present an undue hardship.”

Barbuto’s former employer Advantage Sales and Marketing argued that she could not sue for discrimination as marijuana is illegal under federal law, even though it is legal under Massachusetts state law. However, the Massachusetts Supreme Judicial Court disagreed.

A six-judge panel unanimously ruled that employers are required to provide “reasonable accommodation to the employee” if a doctor finds medical marijuana to be the most effective remedy for an illness. In addition, only the employee would be at the risk of prosecution for drug use under federal law, not the employer. Advantage Sales and Marketing’s drug policy banning marijuana use clashed with Barbuto’s right to use medical marijuana as a treatment for her disability under state law.

“By summarily terminating Ms. Barbuto’s employment after she tested positive for marijuana, the employer failed to engage in an interactive process with her and failed to discuss whether other equally effective medical alternatives might exist which did not conflict with the company’s drug policy,” said Erlich.

The court reinstated Barbuto’s 2015 disability discrimination lawsuit against her former employer. The decision was hailed as a significant win for the state’s employees and patients who use medical marijuana.

Erlich noted that the California Supreme Court addressed a similar issue in 2008. However, that case had a different outcome.

“Unfortunately for California employees, the court held that medical marijuana was not equivalent to other doctor-prescribed medications and that California’s compassionate use law merely decriminalized marijuana possession,” said Erlich. “Now that the Massachusetts Supreme Court has sided with an employee’s right to accommodation in the workplace, it might be time for the California courts to readdress this issue.”

Learn more at McCormack & Erlich 150 Post Street Suite 742 San Francisco, CA 94108 Phone: (415) 296-8420
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