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The Massachusetts Superior Court ruled that a woman who was fired for testing positive for marijuana usage can sue her employer for handicap discrimination. Christina Barbuto, who had a doctor’s prescription for medical marijuana, which is legal in Massachusetts, was fired on her first day of work for testing positive for the drug.

Barbuto alleged that she informed Advantage Sales and Marketing during interviews that she uses cannabis several nights a week to treat low appetite, a symptom of her Crohn’s disease. She explained that she followed her doctor’s orders to consume a low dosage before meals, but never consumed cannabis before or during work. She claims the hiring manager told her it would not be a problem. However, Barbuto was fired after failing the required pre-hire drug test.

In response, Barbuto filed a lawsuit against her employer, alleging handicap discrimination. The court ruled against the company, which alleged that she could not sue them for discrimination because marijuana possession remains illegal under federal law. However, Massachusetts Chief Justice Ralph Grant ruled that if a certified doctor determines that marijuana is the best treatment for an employee’s medical condition, an exception to the employer’s drug policy is a reasonable accommodation to make for that employee.

“Under federal law (and many state laws), an employer must provide a reasonable accommodation for any disabled employee as long as the accommodation does not present an undue hardship,” said San Francisco employment attorney Jason Erlich.

According to Justice Grant, the fact that marijuana possession is federally unlawful does not make this exception “per se an unreasonable accommodation.” Justice Grant said Massachusetts recognizes medical marijuana as the same as any other prescription drug, and anti-discrimination laws require companies to create acceptable accommodations for medical marijuana patients.

“By summarily terminating her 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,” Erlich said.

According to Barbuto’s attorneys, her win could set a precedent for employers and employees in Massachusetts, as well as other states where medical marijuana is legal.

Marijuana Use: Federal Law vs. State Law
States that legalized medical marijuana

One issue raised by this case is the relationship between state and federal law on marijuana policy. Marijuana remains illegal under federal law as a schedule one drug, but several states have their own laws regarding marijuana use and distribution.

California was the first state to legalize medical marijuana in 1996 after the California medical community acknowledged that cannabis contains medical benefits that can treat many types of symptoms. Now, 29 states participate in the medical marijuana program, and 8 states and Washington D.C. have legalized recreational marijuana.

However, the way employers implement marijuana policy faces challenges and confusion as the relationship between state and federal laws are often contradictory. “These challenges and confusions exist due to the fact that marijuana remains completely illegal under federal law because it is a schedule one substance (ironically defined as drugs with no commonly accepted medical use with addictive potential). This means, based on federal law, no employee may legally use, possess or sell marijuana. On the other hand, depending on the state, marijuana is either highly regulated but legal for recreational use, or highly regulated but legal for medical use,” said Michigan criminal defense attorney Patrick Barone.

“Marijuana use, distribution and sale has been illegal under the federal government since the early 1970s,” said New Jersey attorney Daniel T. McKillop, who leads a team of attorneys assisting clients operating in the legal cannabis industry. “However, in 2013 former Deputy Attorney General James M. Cole issued a memorandum indicating that in states with robust marijuana regulatory programs that do not interfere with federal enforcement priorities, the Department of Justice may decline to dedicate federal resources to enforcing the prohibition."

According to McKillop, the Massachusetts ruling stands as a groundbreaking decision that could set a precedent for how similar cases involving employees using medical marijuana outside of work will be handled in court. However, cases like Barbuto’s will continue to arise as state and federal marijuana laws evolve.

As of March 31, 2017, 19 more states have bills pending that would legalize adult-use marijuana. Even on the federal level, lawmakers are trending toward opening up avenues for the decriminalization of the drug. On August 1, Sen. Cory Booker introduced legislation that would remove marijuana from the federal Controlled Substances Act, allowing states to set their own policies.

But until a marijuana rescheduling occurs at the federal level, private marijuana usage will continue to be a contentious and evolving issue for employers and private citizens alike. “This is still a very fluid area of employment law, and employers need to consult with a knowledgeable attorney to avoid litigation issues and stay abreast of state and federal law while implementing employment policies,” McKillop said.

About Author

Cristina Fries is a contributing author at Bigger Law Firm Magazine. She has overseen marketing strategies for mid size and large law firms.

  • Brian Kelly

    Medical Marijuana patients deserve and demand equal rights and protections under our laws that are currently afforded to the drinkers of far more dangerous and deadly, highly addictive, yet perfectly legal, toxic man made narcotic pain pills and other pharmaceuticals.

    Equal rights and protections in our workplaces and everywhere else.

    Plain and simple!

    Legalize Medical Marijuana Nationwide!

    • Brian Kelly

      When a loved one is in pain, wasting away unable to eat, and needs this marvelous herb in order to increase their appetite, reduce the overwhelming pain, and live as as healthy and happily as they can with the time they have left, let’s have the compassion to allow them to have it.

      Stop treating Medical Marijuana Patients like second rate citizens and common criminals by forcing them to the dangerous black market for their medicine.

      Risking incarceration to obtain the medicine you need is no way to be forced to live.

      Support Medical Marijuana Now!

      “[A] federal policy that prohibits physicians from alleviating suffering by prescribing marijuana for seriously ill patients is misguided, heavy-handed, and inhumane.” — Dr. Jerome Kassirer, “Federal Foolishness and Marijuana,” editorial, New England Journal of Medicine, January 30, 1997

      “The National Nurses Society on Addictions urges the federal government to remove marijuana from the Schedule I category immediately, and make it available for physicians to prescribe. NNSA urges the American Nurses’ Association and other health care professional organizations to support patient access to this medicine.” — National Nurses Society on Addictions, May 1, 1995

      “[M]arijuana has an extremely wide acute margin of safety for use under medical supervision and cannot cause lethal reactions … [G]reater harm is caused by the legal consequences of its prohibition than possible risks of medicinal use.” — American Public Health Association, Resolution #9513, “Access to Therapeutic Marijuana/Cannabis,” 1995

      “When appropriately prescribed and monitored, marijuana/cannabis can provide immeasurable benefits for the health and well-being of our patients … We support state and federal legislation not only to remove criminal penalties associated with medical marijuana, but further to exclude marijuana/cannabis from classification as a Schedule I drug.” — American Academy of HIV Medicine, letter to New York Assemblyman Richard Gottfried, November 11, 2003

      “[The AAFP accepts the use of medical marijuana] under medical supervision and control for specific medical indications.” — American Academy of Family Physicians, 1989, reaffirmed in 2001

      “[We] recommend … allow[ing] [marijuana] prescription where medically appropriate.” — National Association for Public Health Policy, November 15, 1998

      “Therefore be it resolved that the American Nurses Association will: — Support the right of patients to have safe access to therapeutic marijuana/cannabis under appropriate prescriber supervision.” — American Nurses Association, resolution, 2003

      • Brian Kelly

        There is absolutely no denying that the vast majority of Americans support providing full, safe, legal access to Medical Marijauana Nationwide.

        Pennsylvania: Franklin & Marshall College
        A record number of Pennsylvania voters, 84 percent, favor legalizing medical marijuana for adults if a doctor recommends it.

        Harris Poll
        Eighty-one percent of respondents, including super-majorities ofDemocrats, Republicans, and Independents, expressed support forlegalizing marijuana for medical treatment.

        Virginia: Quinnipiac University Poll
        Fifty-four percent of voters support “allowing adults to legally
        possess small amounts of marijuana for personal use.” Nearly nine out of ten Virginians support legalizing the use of cannabis for medicinal purposes.

        Florida, Ohio, Pennsylvania: Quinnipiac University Poll
        Voters in three critical swing states support legalization and
        super-majorities in all three states endorse allowing doctors to
        recommend cannabis therapy.

        Pennsylvania: Robert Morris University
        The survey showed 67.5 percent of Pennsylvanians are in favor of legalizing medical marijuana.

        Iowa: Des Moines Register Poll
        Seventy percent of Iowa adults say they favor legalizing marijuana for medical uses.

        North Carolina: Public Policy Polling
        Nearly seven out of ten North Carolinians support a doctor’s right to prescribe marijuana to patients in need.

        Third Way
        Fifty percent support legalizing recreational marijuana for use by adults; 78% are in favor of allowing individuals to use marijuana for medical purposes if a doctor recommends it.

        Florida: Gravis Marketing Poll
        More than 60 percent of Florida voters say that they support Amendment 2, a proposed constitutional amendment to permit cannabis therapy to qualified patients.

        Florida: Quinnipiac University Poll
        Fifty-five percent of voters support allowing adults in Florida to legally possess small amounts of marijuana for personal use.

        Connecticut: Quinnipiac University Poll
        Nine out of ten Connecticut voters support legalizing the use of cannabis for medicinal purposes, and a majority support allowing adults to possess the plant for any purpose.

        Minnesota: KSTP/SurveyUSA Poll
        Sixty-eight percent of Minnesotans believe marijuana should be legal for medical purposes.

        WebMD Survey of Doctors
        A majority of doctors say that medical marijuana should be legalized nationally and that it can deliver real benefits to patients.

        Virginia: Quinnipiac University
        Virginia Voters Back Medical Marijuana with 84% support.

        Iowa: Quinnipiac University Poll
        Iowans overwhelmingly support allowing doctors to prescribe marijuana for medical use.

        Maryland: Goucher Poll
        Ninety percent of Marylanders support the use of marijuana for medical purposes, if prescribed by a doctor.

        Pennsylvania: Mercyhurst Center for Applied Politics Poll
        A strong majority (85%) of Pennsylvania voters say that patients should be allowed to use marijuana when prescribed by a doctor.

        Ohio: Quinnipiac University Poll
        Eighty-seven percent of Ohio voters support the use of medical marijuana.

        New York: Quinnipiac University Poll
        Voters in New York support the legalization of marijuana for both medical (88%) and personal (57%) use.

        North Carolina: Public Policy Polling
        A recent Public Policy Polling survey found 63 percent of North Carolina voters believe doctors should have the right to prescribe marijuana for medical use.

        Florida: Quinnipiac University Poll
        Eighty-two percent of Florida voters support the medicinal use of marijuana.

        Oklahoma: SoonerPoll
        Seventy-one percent support allowing seriously ill patients to possess marijuana for medical purposes with a physician’s recommendation.

        Fox News Poll
        Eighty-five percent of voters favor medical marijuana.

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