CAN USING MEDICAL MARIJUANA GET YOU FIRED?

Medical Marijuana copy

Nearly ninety percent of states, as well as Puerto Rico and the District of Columbia, allow the limited possession of marijuana for medical treatment. However, federal law still designates marijuana as contraband for any purpose. That means that an individual lawfully prescribed marijuana for medical purposes under a state law is potentially subject to federal criminal prosecution for possessing the marijuana prescribed. It is against this unusual backdrop that the Supreme Judicial Court in Massachusetts decided an interesting case this past summer.

The facts: Cristina Barbuto was offered an entry-level job with Advantage Sales and Marketing (ASM). After accepting the position, she was informed by an ASM representative that she was required to take a mandatory drug test. Ms. Barbuto, who suffers from Crohn’s disease and irritable bowel syndrome, informed the representative that she uses medical marijuana as prescribed by her doctor and is a qualifying medical marijuana patient under the Massachusetts medical marijuana law. As a result, Ms. Barbuto told the representative that she would test positive for marijuana. The representative assured her that her medical use of marijuana would not be an issue with the company. Ms. Barbuto then submitted a urine sample and, about a week later, completed her first day of work at ASM. That evening, an ASM Human Resources representative contacted Ms. Barbuto to tell her she was terminated for testing positive for marijuana, and further stated that ASM did not care if she used marijuana to treat her medical condition because “we follow federal law, not state law.”

Ms. Barbuto filed a lawsuit against ASM, alleging, among other things, that she is a “qualified handicapped person” under state law because she has a debilitating medical condition but is capable of performing the essential functions of the job with a reasonable accommodation to her handicap; that is, a waiver of ASM’s policy barring anyone from employment who tests positive for marijuana, so that she may continue to use medical marijuana. ASM argued that allowing Ms. Barbuto to use marijuana is not a reasonable accommodation because it is a federal crime and, therefore, is fundamentally unreasonable. The trial court agreed with ASM and dismissed Ms. Barbuto’s lawsuit, including the handicap discrimination claim.

The Supreme Judicial Court reversed, likening the use and possession of medically prescribed marijuana by a qualifying patient under state law to the lawful use and possession of any other prescribed medication. The Court concluded that an employee’s use of medical marijuana under the circumstances of Ms. Barbuto’s case is not fundamentally unreasonable as an accommodation to her handicap. The Court sent the case back down to the trial court, thereby allowing Ms. Barbuto to continue to pursue her handicap discrimination claim against ASM.

Of course, the Court’s decision does not necessarily mean that she will prevail in proving her claim, nor does it mean that all employees who use medical marijuana are protected from termination regardless of the facts or circumstances of their case. Rather, it means that an employer cannot reject such an accommodation as unreasonable on the sole basis that it remains a Schedule I drug under federal law. In other words, use of medical marijuana must be part of the reasonable accommodation conversation between an employer and an employee seeking an accommodation to his/her handicap.

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