The potential legalization of marijuana has been a "hot topic" for some years now, as certain states make moves for legalization and even more have approved the use of medical marijuana. However, not all employers necessarily condone those who work for them using the drug, even for medical purposes. Recently, a sales and marketing firm discriminated against one of their employees in Massachusetts for using medical marijuana for her Crohn's disease.
Supreme Judicial Court Chief Justice, Ralph D. Gants, rejected the employer’s argument that they had the ability to enforce strict no-drug policies, even if their employees were suffering from such diseases. As a result, Massachusetts companies cannot fire employees that possess a prescription for medical marijuana on the grounds that they simply use the drug.
Background on the case
The decision reached by Supreme Judicial Court Chief Justice Ralph D. Gants was directly in opposition of a lower court's dismissal of a lawsuit in 2015. Christina Barbuto was fired by Advantage Sales and Marketing for testing positive for marijuana, and she had only been working for the company for one day. She was fired despite the fact that she was open with the company within the hiring process, telling them that she utilizes medical marijuana to treat Crohn's disease. She stated that she only utilized the drug after office hours, never before or during, and during interviews she was told it would not be a problem, but she was fired nonetheless.
Crohn's disease can result in a massive loss of appetite and Barbuto explained, "I explained to them that I just used a very small amount before meals. It wasn't a 'high' feeling, it was just getting me hungry and doing what the doctor told me.
Crohn's disease is a chronic inflammatory disorder affecting the digestive tract that medical marijuana has been shown to improve.
Argument of Advantage Sales and Marketing
Advantage Sales and Marketing stated that they were justified under the law for firing Barbuto because federally, marijuana use is illegal. Therefore, if they condoned and permitted her use, even medically and outside of work hours, the "reasonable accommodation" required by antidiscrimination laws would be exceeded, putting the company in jeopardy. They also stated that her dismissal from the company could not be considered discriminatory because anti-drug use policy applied to each and every one of their employees.
However, Advantage Sales and Marketing's arguments were not sufficient in the eyes of Gants and the high court. Gants stated, "The only person at risk of federal criminal prosecution for her possession of medical marijuana is the employee", so their claim that allowing Barbuto to use medical marijuana could put the company at risk was denied. Gants went on to say, by Advantage Sales and Marketing's logic for why they were not discriminating, "A company that barred the use of insulin by its employees in accordance with a company policy would not be discriminating against diabetics because of their handicap, but would simply be implementing a company policy prohibiting the use of a medication." He stated that firing an employee for the violation of such a rule “effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination.”
However, Barbuto did claim that her being fired by Advantage Sales and Marketing violated the 2012 medical marijuana law, which the court dismissed. They also dismissed one other claim by Barbuto.
How companies should approach those with medical marijuana prescriptions
Antidiscrimination laws require that firms, to the best of their ability, negotiate a mutually acceptable arrangement with each employee that has a medical marijuana prescription. Ways in which that they can accomplish this agreement is exploring alternative medicines and allowing use of the drug, but not inside company grounds or within work hours.
Statement from the Supreme Judicial Court Chief Justice
Supreme Judicial Court Chief Justice Ralph D. Gants took the time to specify that anti-marijuana policies would not be acceptable when addressing those with medical marijuana prescriptions. He stated, "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."
Advantage Sales and Marketing's response to losing the discrimination case
A lawyer under Advantage Sales and Marketing did express that they were pleased that two of the cases brought by Barbuto were dismissed; however, he did say they were disappointed in the court's decision to rule that Advantage had discriminated against Barbuto. He went further and commented on Barbuto's dismissal from the Supreme Judicial Court that will be reviewed under a lower court, "we have not yet had the opportunity to litigate the plaintiff's remaining claim on the merits, but we are confident that our client acted in accordance with the law. We are weighing our options." This case is set to be reviewed under new parameters that were set forth by the high court.
Response to the ruling
Firstly, Barbuto expressed her joy at the ruling in her favor and mentioned that she was hopeful that it would have the ability to assist in similar cases where patients have been fired for the use of marijuana. This is hard to assess, as many firings don't give clear answers as to the reason for termination. So, it is impossible to know how many other employees have been dismissed for the same reasons as Barbuto, but it is likely that her case will be able to help those in the future. Advocates agree and even state that they expect other medical marijuana patients that were fired already in similar circumstances to Barbuto to come forward to contest their terminations following the ruling.
The Massachusetts Patient Advocacy Alliance prepared a statement in which they said, "we are thrilled that the Supreme Judicial Court of Massachusetts has ruled in favor of compassion for people that use medical marijuana for a range of debilitating conditions." The Massachusetts Patient Advocacy Alliance were sponsored Massachusetts' successful 2012 medical marijuana ballot initiative.
However, not everyone had a positive response to the ruling. Many worry for how it will affect businesses in the future.
Specifically, a business group that interceded the case worry that following the ruling, small companies will be hurt by their inability to negotiate sufficient accommodations for marijuana patients due to their lack of resources or expertise. Karen Harned, from the National Federation of Independent Business Small Business Legal Center, stated that "this is opening small business owners up to a ton of litigation. It's making their lives harder because they can no longer have a clear drug-free-workplace policy."
Finding a middle ground
Barbuto's case ruling does not imply that employers are permanently banned from firing a patient for any type of marijuana use, as many fear. The ruling certainly does make it more difficult for employers to prove that they are unable to accommodate their employees' needs in terms of the drug, but it is not impossible. If their employees' use hinders their job performance, endangers public safety or the business itself, firms are still able to terminate their contracts with said employee. For example, firms that contract with the federal government or firms in which workers must operate heavy machinery have the ability to argue that allowing or accommodating their employees' use of marijuana could indeed constitute an "undue hardship."