Blog

On Monday, the Massachusetts Supreme Judicial Court recognized standing to sue in an employee who was terminated for using medical marijuana. The Mass. order stands in direct contrast to recent decisions from Colorado, and creates new conflicts between states on how to treat their own legalization of the drug.

The Mass. Court ruled in Cristina Barbuto v. Advantage Sales and Marketing, LLC that an employee could pursue remedies against her employer for handicap discrimination in violation of Massachusetts’ anti-discrimination statute based solely on her use of medical marijuana.

In 2012, Massachusetts voters approved an Act for the Humanitarian Use of Medical Marijuana (St.2012, c. 369, §1). The law states “that there should be no punishment under state law for qualifying patients…for the medical use of marijuana.” Two years later, Plaintiff Cristina Barbuto started working for Defendant Advantage Sales and Marketing (ASM). When asked to take a drug test, Barbuto said she would test positive for marijuana because she suffers from Crohn’s disease and treats the debilitating gastrointestinal condition with medical marijuana prescribed by her physician. She promised not to consume marijuana before or during work.

Barbuto’s supervisor told her that her lawful use of medical marijuana would not be an issue with the company. Nonetheless, Barbuto was terminated for testing positive on her drug test. The HR representative who fire Barbuto told her that the company did not care if the use of marijuana was to treat a medical condition because “we follow federal law, not state law.”

Barbuto filed a charge of discrimination with the Massachusetts Commission Against Discrimination, and later a complaint in Superior court alleging, among other things, discrimination based on a handicap in violation of Massachusetts Anti-Discrimination Statute. G. L. c. 151B, § 4 (16). ASM moved to dismiss the complaint, which was granted, and Barbato directly appealed to the Massachusetts Supreme Judicial Court.

Noting the conflict between Massachusetts’ medical marijuana act, and Federal law, the Massachusetts Supreme Judicial Court found that Barbato could pursue a claim for failure to accommodate her Crohn’s disease. Specifically, the Court found that allowing Barbuto to use medical marijuana outside of work may constitute a reasonable accommodation, and held that it was the employer’s burden to prove that such an accommodation imposed undue hardship. The Court held: “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.” Barbuto Opinion, p.16. In other words, the Massachusetts Supreme Judicial Court deferred to state law over federal law, which creates some interesting pre-emption issues.

In contrast, the Colorado Supreme Court has deferred to Federal Law and found that despite the lawful use of medical marijuana under state law, there was no cause of action against an employer for terminating an employee for use of medical marijuana. Coats v. Dish Network. Coats challenged his termination under Colorado’s lawful off-duty conduct statute, and not under Colorado’s Anti-Discrimination Statute.

The Barbuto decision provides Colorado employees – and employees in any state with strong anti-discrimination state laws – new arguments to bring wrongful termination claims based on the use of medical marijuana, and could cast doubt on the effectiveness of company drug policies. Based on this new twist, employers might pause before terminating a disabled employee based solely on the use of medical marijuana.