You Can’t Fire Cannabis Patients Just for Using Cannabis, Massachusetts High Court RulesBen AdlinJuly 17, 2017
“I can’t stress this enough, it’s the first case of its kind in the country.”Dale Deitchler, employment lawyer
The opinion came as a shock to many, as every other state to consider the issue has decided that employers may indeed fire workers who test positive for cannabis—even if those employees are abiding by state law. In Colorado, for example, the state Supreme Court in 2015 held that a state law barring employers from firing workers for legal, off-duty behavior didn’t apply because cannabis is still illegal under federal law. California, Washington, Montana, and others have issued similar rulings.
In Massachusetts, it’s now a different story.
“I can’t stress this enough, it’s the first case of its kind in the country,” Dale Deitchler, an employment attorney and expert on cannabis in the workplace, told MassLive. “The court created law.”
While the opinion could be a game-changer for medical cannabis patients, it’s far from an endorsement of on-the-job consumption. Employees can still be fired for using cannabis before or during work, or for failing a drug test if consumption isn’t part of a doctor-approved medical treatment. And workers with safety-sensitive jobs, such as pilots, truck drivers, and others, can still lose their jobs if they test positive for cannabis.
For patients like plaintiff Cristina Barbuto, however, the new precedent means no longer having to decide between medicine and employment.
Barbuto, a state-legal medical cannabis patient, was offered a job at Advantage Sales and Marketing (ASM) in 2014. When the company said she’d need to take a mandatory drug test, she replied that she would test positive for cannabis because she uses it to treat her Crohn’s disease, an autoimmune disorder. (About 40% of all US workers are subjected to drug tests during the hiring process.)
According to court records, Barbuto consumes cannabis two or three times per week, usually in the evenings, to help stimulate appetite and maintain a healthy weight. She assured ASM she wouldn’t consume either before or during her workday.
At first, Barbuto’s supervisor told her that her medical use of cannabis “should not be a problem,” the court opinion says. He later called her to confirm the same. But after Barbuto submitted a urine sample and completed her first day of work, an ASM human resources representative informed her that she’d been terminated for testing positive for cannabis.
“We follow federal law, not state law,” the representative said, according to court records.
Barbuto filed suit.
Don’t assume the ruling means you can wake and bake before tomorrow’s commute.
In Monday’s decision, the state’s high court concluded that the matter essentially boiled down to whether allowing Barbuto’s offsite cannabis use constituted a reasonable accommodation for her medical condition.
“An employee’s use of medical marijuana under these circumstances is not facially unreasonable as an accommodation of her handicap,” justices concluded, meaning cannabis use shouldn’t inherently be out-of-bounds for employees with debilitating conditions. Despite that fact, “it does not necessarily mean that the employee will prevail in proving handicap discrimination,” the court wrote. The question is whether accommodating an employee’s medical cannabis use “would create undue hardship” on an employer.
The court gives some examples. An employer might demonstrate that allowing cannabis use would create an “unacceptably significant” safety risk to the public, the employee, or coworkers. Or the employer could show that cannabis use “would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business.” Transportation companies, for instance, are subject to US Department of Transportation rules that disallow accommodations for cannabis.
The upshot? Don’t assume that Monday’s ruling means you can wake and bake before tomorrow’s commute. But if you’re a law-abiding Massachusetts medical patient who only consumes outside of work and doesn’t show up impaired, the state’s highest court is now on your side.