Firing somebody with a medical-marijuana prescription is illegal discrimination, court rules

The Supreme Judicial Court ruled today that voter approval of medicinal marijuana means employers can no longer simply fire workers who test positive for THC on a drug test if they can prove they were using the drug with a doctor's prescription.

The ruling comes in the case of a woman who was consuming marijuana two to three times a week to help ease the pain of Crohn's Disease and who tested positive for marijuana administered by her new employer, for which she handed out samples in supermarkets - and which she had informed about her usage.

Although Cristina Barbuto's direct supervisor at Advantage Sales and Marketing said he did not have an issue, she was fired after just one day on the job, by somebody in HR, who told her

ASM did not care if Barbuto used marijuana to treat her medical condition because "we follow federal law, not state law."

The state's highest court noted that the state law that went into effect after voters legalized medical marijuana in 2012 explicitly bans discrimination:

Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.

Barbuto, the court continues, qualifies as "handicapped" under state anti-discrimination laws because the disease is "a debilitating medical condition" causing a major issue in her life - she found it hard to eat and could not maintain a healthy weight. And she would be able to perform her job with a "reasonable accommodation" by her employer - letting her consume marijuana a couple of times a week in the evening.

As to the defendants' second argument, where a handicapped employee needs medication to alleviate or manage the medical condition that renders her handicapped, and the employer fires her because company policy prohibits the use of this medication, the law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap. By the defendants' 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.

ASM argued, however, that the "reasonable accommodation" she sought was not, in fact, reasonable, because marijuana possession is still a crime under federal law.

Sorry, the court ruled, this is where Massachusetts law takes precedence: Barbuto was doing something legal under Massachusetts law and she was not doing something that would put ASM at risk, because she was not toking up at work.

The act also makes clear that it does not require "any accommodation of any on-site medical use of marijuana in any place of employment." ... This limitation implicitly recognizes that the off-site medical use of marijuana might be a permissible "accommodation," which is a term of art specific to the law of handicap discrimination. ...

The fact that the employee's possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation. The only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.

Nor are we convinced that, as a matter of public policy, we should declare such an accommodation to be per se unreasonable solely out of respect for the Federal law prohibiting the possession of marijuana even where lawfully prescribed by a physician. Since 1970 when Congress determined that marijuana was a Schedule I controlled substance that, in contrast with a Schedule II, III, IV, or V controlled substance, "has no currently accepted medical use in treatment in the United States," nearly ninety per cent of the States have enacted laws regarding medical marijuana that reflect their determination that marijuana, where lawfully prescribed by a physician, has a currently accepted medical use in treatment. ... 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 justices then continued that even if it accepted the illegality argument, state law would still have required ASM to work with Barbuto to find an alternative treatment as effective as marijuana at curbing her symptoms - which, the court said, the company did not.

The court added that its ruling may not apply in all cases. Trucking companies, for example, might have a case that a driver's marijuana use could impair his job and safety.