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You Can’t Fire Cannabis Patients Just for Using Cannabis, Massachusetts High Court Rules

July 17, 2017
(annestahl/iStock)
In what appears to be a first-of-its-kind ruling, the Massachusetts Supreme Judicial Court on Monday said that employees can’t be fired simply for using medical cannabis. Such terminations, the court said, violate state antidiscrimination rules.

“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.”

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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.)

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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.

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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.

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Ben Adlin

Ben Adlin is a senior editor at Leafly who specializes in politics and the law. Follow him on Twitter: @badlin

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  • FlunkedAgain

    I know someone who works for a “Wall Street” firm, and they told me several years ago, that the Company he works for test for Abuse, not Use.

    I short, if you’re putting big bucks on the bottom line, it’s not a concern.

    • A Mary Hunt

      Well, that makes sense. If you are making America Rich Again, we will use discretion on following laws.

      • Trey

        This is how the entire world works. Rich make the rules and don’t follow them. Why this a surprise to anyone is beyond me.

        • Knitmygrits

          What? No one woke up to the “planetary slavery” fact? They stab your babies with dozens of unnecessary vaccines, force them to pay for an education that will benefit only them and decide what you get to take to save YOUR life. We’re ALL expendible. Nothing but “resources” that can be done away with like the wars and money going to Africa from Canada to abort the babies of black, tribal women. Then there’s the distrust ion of all aboriginal people’s on the planet. Canada doesn’t plan on ever reconciling with them. They’d rather get hoofed in the nether regions. We are chattel, possessions, owned, slaves. Wake up. They intended on keeping us from our medicine all along.

      • Chris

        There aren’t any laws (with a few exceptions) requiring employers to test for or care about drug use.

        • James Fabins

          It is the insurance company lawyers causing this.

  • jake101goodale

    We need to pass a law on the federal level banning all workplace drug testing that tests previous drug usage. Employers shouldn’t have say in what an employees do in their free time.
    Test for current intoxication at the work place and thats it.

    • James Fabins

      Congress does not get tested.

      • Jackson Shredder

        That’s because they would all test positive for Cocaine use and we would have no congress !! Hey, that sounds like a great idea. Congress should have mandatory drug testing if we have to have it. 🙂

    • Scooter Bell

      If testing for previous cannabis usage, do the same for alcohol. Your hangover would get you fired instead of put on sick leave/mistaken for the flu/etc.

    • TerryGauchat

      Good luck with that. The majority of the Fortune 500 do pre-employment drug screening on some portion of their employees. Since Corporations control this country, they would be impossible to defeat.

      • jake101goodale

        Yah it will most likely be enacted by companies who realize top talent uses drugs and responsible recreational drug usage in a person’s free time does not correlate with workplace performance

  • Grow Your Own

    “The question is whether accommodating an employee’s “Medical Cannabis” use “would create undue hardship” on an employer.” This Question Needs To Be Asked Nationwide.
    What an Employee does on Their Free Time(Off Work) should not Terminate Their Employment as long they Don’t Show Up To Work Impaired and are able to safely perform their assigned job.

    • Scooter Bell

      Nailed it! :]

    • Todd Burgess

      True that, but, if they can’t catchya, like they tried with me, random drug test my a$$, they can you making an on the job injury claim. One way or another, the thinking person is not allowed in the workplace.

  • RevJack

    One small but important contradiction of the courts granting all power to employers and none to employees. Employers in this society already have incredible power (40% of new employees drug tested). You don’t even have privacy over your bodily fluids or even your own time away from work. I wonder how many CEO’s are subjected to drug tests?.

    • Jackson Shredder

      It’s not like they are making you rich by working there !! You are making them rich ! It’s is so time for a revolution !!

  • RevJack

    If the serfs don’t rise up against the aristocracy then they will always be serfs.

  • onoz

    Let’s also consider the validity of the test itself, that is, how many false positives happen, and follow the money to determine who is profiting from the sale of those tests.

    Besides, a person being screened as a condition of employment or to prove eligibility for social services such as welfare is allowed to go alone into the bathroom to collect the specimen. Any legitimate (sic) illicit drug user knows ways to pass a urine test under those circumstances.

    • Jackson Shredder

      I would not be surprised if they start testing people to receive their social security benefits, you know the vast amount of YOUR money that they only pay you a small percentage of in the first place. It’s ridiculous.

  • alacrity

    I’ve a friend who works for a local brewery in an administrative capacity. The policy there, until recently, was lax and allowed consumption (almost mandated) of the brews while on the clock- the tasting room was open to one and all, and tasting the latest and experimental brews was encouraged. You were expected to be an adult about it- if you got hammered on the job, you said so, made arrangements to get home safe and that was it- and for the 40+ years of operation, no problems of major import were documented (yes, there were a few things that got people fired). A couple years ago, the brewery was sold to a major manufacturer who allowed the drinking to continue- but mandated random drug testing, and cannabis was on the list of verboten positives.

    In the first round, 3 senior execs and 26 employees were fired for testing positive for cannabis.

    The second round took out another 13.

    The third round cost 11 more their careers.

    in the first 2 months of operation, 53 people were terminated for simply using cannabis in some way- all of whom had medical recc’s per state requirements.

    That the CEO of the new ownership has 3 DUI’s is inconsequential…

  • David

    wake and bake. don’t work for companies that don’t toke.

  • Jen

    Ok as far as drug testing to get into a job, most people I know are bringing in someone else’s urine. So what you are getting is employees that are already, basically lying, because they have to. Or using a clean out product and quitting a bit before the test. So ridiculous how they treat weed, you might as well drug test for coffee.