The Boston Globe | Dan Adams | July 17, 2017

Ruling means Mass. companies can't fire workers for medical marijuana

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 employers’ arguments 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 of its Massachusetts operation who uses marijuana to treat Crohn’s disease when it fired her for flunking a drug test.

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 use blanket anti-marijuana policies to dismiss workers whose doctors have prescribed the drug to treat their illnesses.

Instead, antidiscrimination laws require companies to attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ, such as exploring alternative medications or allowing use of the drug only outside of work hours.

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 appetites.

She said the local hiring manager told her it would not be a problem, and that she was blindsided by her dismissal.

“I explained to them that I just used a very small amount before meals,” Barbuto said. “It wasn’t a ‘high’ feeling, it was just getting me hungry and doing what the doctor told me.”

Barbuto said she was thrilled by the ruling, and hoped it would help other patients who have been fired for using marijuana. It’s unclear how many workers have been dismissed under similar circumstances in Massachusetts.

Advantage Sales and Marketing had argued that Barbuto’s firing was justified 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 antidiscrimination laws.

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 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 medication.”

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 said 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 Barbuto’s dismissal will be reviewed under the new parameters set out by the high court.

Advocates called the ruling long overdue, and said they expected that other medical marijuana patients who had been fired over their use of the drug would soon contest their dismissals.

“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 prepared statement.

A business group that interceded in the case, however, said 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. “It’s making their lives harder because they can no longer have a clear drug-free-workplace policy.”

The decision doesn’t mean employers can never fire a patient for using marijuana medically; firms that contract with the federal government, for example, or where workers operate heavy machinery, could argue that accommodating their employees’ use of the drug constitutes an “undue hardship.”

But the ruling puts the burden on employers to prove they cannot accommodate medical marijuana patients because their cannabis use impairs their ability to do required work, endangers public safety, or otherwise demonstrably endangers the business, Gants wrote.

“Employers can still prevail,” said Chris Feudo, an attorney at Foley Hoag who represents companies in employment disputes.

“Employees aren’t entitled to the accommodation they want; they’re entitled to a reasonable accommodation — and sometimes, there isn’t one.”

Still, Feudo said, the ruling will have “really wide implications.”