Pubdate: Mon, 17 Jul 2017
Source: Boston Globe (MA)
Copyright: 2017 Globe Newspaper Company
Author: Dan Adams


Massachusetts companies cannot fire employees who have a prescription
for medical marijuana simply because they use the drug, the state's
highest court ruled Monday, rejecting arguments from employers that
they could summarily enforce strict no-drug policies against such patients.

Supreme Judicial Court Chief Justice Ralph D. Gants said a California
sales and marketing firm discriminated against an employee in its
Foxborough office who uses marijuana to treat Crohn's disease when it
fired her for flunking a drug test without first trying to reach an
accommodation with her.

In Massachusetts, Gants wrote, "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."

Therefore, he said, employers can't enforce blanket anti-marijuana
policies against workers whose doctors have prescribed marijuana to
treat their illnesses. Instead, anti-discrimination laws require
companies to attempt to negotiate a mutually acceptable arrangement
with each medical marijuana patient they employ - exploring
alternative medications, or allowing use of the drug only outside of
work hours, for example.

Private companies may only dismiss employees who use the drug
medically after proving their use of marijuana impairs their ability
to do required work, endangers public safety, or poses the business an
"undue hardship," Gants said.

The ruling overturned a lower court's dismissal of a lawsuit against
brought in 2015 by Cristina Barbuto of Brewster, who was fired by
Advantage Sales and Marketing after just one day on the job because
she tested positive for marijuana.

Barbuto said she told the company during interviews that she uses
cannabis several nights a week - not before or during work hours - to
treat her Crohn's disease, a chronic inflammatory disorder that
affects the digestive tract and can inhibit sufferers' appetites. She
claimed the hiring manager told her it would not be a problem, and
that she was blindsided by her dismissal.

Advantage Sales and Marketing argued before the court that it was
justified in firing Barbuto because marijuana is illegal under federal
law, and that permitting her to use it, even outside of work hours,
exceeded the "reasonable accommodation" required by
anti-discrimination laws that protect workers with

Gants rejected that claim, writing that "the only person at risk of
Federal criminal prosecution for her possession of medical marijuana
is the employee," not the employer.

The firm also argued that Barbuto's dismissal wasn't discriminatory
because its anti-drug-use policy was applied uniformly to all employees.

But the high court emphatically disagreed, with Gants writing that
under Advantage's logic, "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

Firing an employee for violating such a rule, he continued,
"effectively denies a handicapped employee the opportunity of a
reasonable accommodation, and therefore is appropriately recognized as
handicap discrimination."

The court did dismiss two other claims brought by Barbuto, including
that her firing violated the 2012 medical marijuana law.

An attorney for Advantage Sales and Marketing the company was pleased
two of the claims were dismissed, but "disappointed" at the court's
ruling on the discrimination claim.

"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," Michael Clarkson, the attorney,
said in a statement. "We are weighing our options.

The SJC sent the case back to a lower court, where Advantage Sales and
Marketing will have to justify Barbuto's dismissal based on the new
parameters set out by the high court.

Advocates called the ruling long overdue, and said they expected other
medical marijuana patients who had been fired over their use of the
drug would soon file a flurry of claims with the Massachusetts
Commission Against Discrimination. It's unclear how many workers have
been dismissed under similar circumstances in Massachusetts.

"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, which sponsored the state's successful 2012 medical
marijuana ballot initiative, said in a statement.

Business groups, however, blasted the court, saying the ruling would
especially hurt small companies that don't have the resources or
expertise to negotiate accommodations for marijuana patients.

"This is opening small business owners up to a ton of litigation,"
said Karen Harned, the executive director of the National Federation
of Independent Business Small Business Legal Center, which filed a
brief in support of Advantage in the case. "It's making their lives
harder because they can no longer have a clear drug-free-workplace
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