Massachusetts SJC Rules in Favor of Employee Fired for Medical Marijuana Use

By | August 7, 2017

The Massachusetts Supreme Judicial Court has ruled in favor of a woman who was fired by her employer for testing positive for her prescribed use of marijuana to treat a medical condition.

The court found that because medical marijuana was legally prescribed to her under state law, the woman can sue her employer for handicap discrimination.

This comes after the employee, plaintiff Cristina Barbuto, accepted an offer for an entry-level position with defendant Advantage Sales and Marketing (ASM) in the summer of 2014.

Barbuto was required to take a mandatory drug test, and she told her supervisor she would test positive for marijuana as a result of her Crohn’s Disease. Because her physician prescribed marijuana for medical purposes, she was considered a qualifying medical marijuana patient under Massachusetts law. She informed her supervisor that she did not use marijuana daily and would not consume it before or at work, according to the court document.

Barbuto’s supervisor confirmed with others at ASM that her medicinal use of marijuana would not be a problem, the court document stated.

After Barbuto submitted a urine sample for the mandatory drug test, the court document said she attended an ASM training program and completed her first day of work without using marijuana at the workplace or reporting to work intoxicated. That evening, however, defendant Joanna Meredith Villaruz, ASM’s human resources representative, told Barbuto she was terminated for testing positive for marijuana. Villaruz informed Barbuto this is because ASM follows federal rather than state law.

Following her termination, Barbuto filed a verified charge of discrimination against ASM and Villaruz with the Massachusetts Commission Against Discrimination (MCAD), which she later withdrew in order to file a complaint in the Superior Court. The complaint included six claims for handicap discrimination, interference with her right to be protected from handicap discrimination, aiding and abetting ASM in committing handicap discrimination, invasion of privacy, denial of the right to use marijuana lawfully as a registered patient to treat a debilitating medical condition, and violation of public policy by terminating her for lawfully using marijuana for medicinal purposes. The second and third claims were brought against Villaruz alone, while the rest were brought against both ASM and Villaruz.

After unsuccessfully trying to remove the case to United States District Court, the defendants filed a motion to dismiss the complaint in the Superior Court.

The judge allowed the motion to dismiss for all counts except the invasion of privacy claim. At the request of Barbuto, the judge entered a separate and final judgment on the dismissed claims and stayed the invasion of privacy claim pending appeal. Barbuto then filed a notice of appeal regarding the dismissed claims, according to the court document.

In her complaint, Barbuto alleged she is a qualified handicapped person because she is capable of performing the essential functions of her job with a reasonable accommodation to her handicap. In this case, the requested accommodation was a waiver of ASM’s policy barring anyone from employment who tests positive for marijuana. This way, Barbuto could continue using prescribed medical marijuana without violating ASM’s policy.

Under Massachusetts law, a plaintiff can allege a claim of handicap discrimination only if the necessary accommodation requested is facially reasonable, the court document said.

The defendants argued Barbuto’s requested accommodation was not facially reasonable because the only accommodation she sought – her continued use of medical marijuana – is a federal crime, the court document said.

Additionally, they stated that even if she were a qualified handicapped person, she was terminated because she failed a drug test that all employees are required to pass, not because of her handicap.

Under federal law, marijuana is still considered a Schedule I controlled substance under the Controlled Substances Act, and possession of it is considered a crime regardless of whether it is prescribed by a physician for medical use.

In 2012, however, Massachusetts voters approved the initiative petition, “An Act for the humanitarian medical use of marijuana,” stating that there shouldn’t be punishment under state law for qualifying patients using medical marijuana.

Like Massachusetts, nearly ninety percent of states in the U.S., as well as Puerto Rico and the District of Columbia, allow the limited possession of marijuana for medical treatment, the court document said.

The court found that as a result of the act under Massachusetts law, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. It also found that if medical marijuana is the most effective medication for the employee’s condition, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.

Additionally, the court found that Barbuto’s possession of medical marijuana violating federal law does not make it unreasonable as an accommodation and would not put ASM at risk for joint possession or aiding and abetting its possession.

“To declare an accommodation for medical marijuana to be per se unreasonable out of respect for federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of states, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions,” the court document said.

The court decided to reverse the dismissal of the counts in the complaint alleging handicap discrimination, but it stated this decision does not necessarily mean Barbuto will succeed in proving handicap discrimination.

“The defendants at summary judgment or trial may offer evidence to meet their burden to show that the plaintiff’s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the defendants’ business,” the court document said.

That said, the Massachusetts Supreme Court reversed the dismissal of count 1 in the complaint, which alleged handicap discrimination, and counts 2 and 3 against Villaruz, alleging that she aided and abetted ASM’s handicap discrimination and interfered with the plaintiff’s exercise of her right to be free from handicap discrimination.

The court concluded that Barbuto can seek a remedy through claims of handicap discrimination in violation of Massachusetts law. It also decided there was no implied statutory private cause of action under the medical marijuana act and that Barbuto failed to state a claim for wrongful termination in violation of public policy. As a result, the court affirmed the dismissal of those claims.

The case was remanded to the Superior Court for further proceedings consistent with the Supreme Court’s opinion.

Topics Cannabis

About Elizabeth Blosfield

Elizabeth Blosfield is the East region editor for Insurance Journal. She can be reached at More from Elizabeth Blosfield

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