Earlier this week, the Massachusetts Supreme Judicial Court ruled that a medical cannabis patient could sue her former employer for handicap discrimination after they fired her for testing positive for cannabis on a drug screening. According to her lawyers, the decision by the court was “very significant” but acts neither as a de facto protection for registered medical cannabis users in the state nor makes them “untouchable.”
“Before this ruling [medical cannabis patients] were the opposite of untouchable,” said Matthew Fogelman, an attorney for the plaintiff and owner of Massachusetts-based employment law firm Fogelman & Fogelman. “They were sort of without remedy because if they failed a drug test, they failed a drug test and that was the bottom line.”
Now, following the landmark ruling, Massachusetts employers will have to treat medical cannabis “like any other medication,” Fogelman said. “[The employee] may need some sort of accommodation, so the company now has to engage in interactive dialogue, an interactive process with the employee… They have to go through that analysis now.”
That analysis would include whether the accommodation sought by the employee was “reasonable” and whether it would create “an undue burden” for the employer.
A landmark victory for cannabis patients
In the case, Barbuto v. Advantage Sales & Marketing, LLC, the six-judge panel ruled that the medical cannabis use by the employee, Christina Barbuto, did not create such an undue burden for her employer, Advantage Sales & Marketing, because she used the medicine at home, after work, and “an employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.”
Adam Fine, a partner at Vicente Sederberg who also worked on the case, said that the court ruling clarified “that there are protections for medical marijuana patients that are duly registered in the Commonwealth” but there “would have to be a similar fact scenario” to the Barbuto case.
That fact scenario, Fine explained, “is someone with a serious medical condition that has a medical marijuana card that uses marijuana outside of work and there is no impairment on the job, which is not a public safety position.”
Fogelman said that the decision is “one other states could look to” if and when similar cases are tried outside of Massachusetts. “Because the Massachusetts court went further than other courts have gone it’s certainly easier for another court in a different state to do the same thing because it can now rely on the Massachusetts decision,” he explained.
Discrimination case vs. employer can move forward
Fine, whose firm specializes in cannabis law, said that he had never dealt with a case such as Barbuto’s and applauded Fogelman for having the courage to take on a potentially controversial case, acknowledging that Barbuto had approached several firms before Fogelman accepted the task.
“[She] had encountered being turned away from other employment lawyers prior to finding Matt,” Fine said, adding that while he has fielded calls from medical cannabis patients who felt they were discriminated against at work, many didn’t want the publicity from the case and wanted to remain private rather than advance the legal process.
Effectively, the court ruling will allow Barbuto’s discrimination case against her former employer to move forward, which Fogelman said could take about two years to conclude. In that case, Barbuto is seeking damages related to her termination.
The case was one of first impression in Massachusetts but runs contrary to what courts in other states have decided. In the case of Coates v. Dish Network, the Colorado Supreme Court ruled that an employee could be fired for using medical cannabis off-duty. In that case, the plaintiff, Brandon Coats, had claimed he had been wrongfully terminated for failing a drug test for cannabis.
In Washington, which like Colorado allows recreational cannabis use, the U.S. Western District Court also ruled against the plaintiff in Swaw v. Safeway, Inc, affirming the company’s decision to fire an employee who was enrolled in the state’s medical cannabis program. In 2008, a federal judge in Michigan threw out a wrongful termination case brought against Walmart by a medical cannabis card holding employee who failed a post-accident drug test.
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