This week, The Massachusetts Supreme Judicial Court ruled that businesses can not fire employees for using medical marijuana if they have a legal prescription. Under the ruling, employees will be able to sue for handicap discrimination if they are fired for their medical marijuana use. The ruling came in the case of Christina Barbuto, a former employee of Advantage Sales and Marketing, who said she was fired because she tested positive for marijuana, despite the fact that she was legally allowed to use the drug under state law. Barbuto was prescribed cannabis by her doctor to help with complications caused by Crohn’s disease.
When Barbuto was fired, she was told that even though cannabis was legal in her state, she was still going to be let go because it is illegal under federal law.
The ruling stated that, “Even if the accommodation of the use of medical marijuana were facially unreasonable, which it is not, the employer here still owed the plaintiff an obligation under (Massachusetts law) before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use that was not prohibited by the employer’s drug policy. This failure to explore a reasonable accommodation alone is sufficient to support a claim of handicap discrimination.”
Chief Justice Ralph Gants concluded that if a medical marijuana patient tests positive for the drug “an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation. The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation.”
The judge said that since it is only the employee who faces legal danger under federal law, the employer can’t claim that they have a liability in the matter. If the employee happens to be using the drug at work, the employer could potentially have a case to fire them, but not if the drug is taken while the employee is off-duty.
Matthew Fogelman, Barbuto’s lawyer, pointed out that since marijuana is legal, it is no different from any other prescription drug.
“This is the highest court in Massachusetts recognizing that the use of medically prescribed marijuana is just as lawful as the use of any prescribed medication,” he said.
“Before this there was no protection in Massachusetts for employers firing them for a drug test even if they were using it for medicinal purposes,” he added.
Earlier this year, a similar move was made through the legislature in Pennsylvania.
In addition to Massachusetts and Pennsylvania, laws have also been passed in Arizona, Delaware, and Minnesota, which protect the rights of employees who have been prescribed medical marijuana.