Court ruling may have huge impact on marijuana and the workplace
Monday, July 24, 2017
The Massachusetts Supreme Judicial Court recently ruled that the use of legally-prescribed marijuana is potentially a protected medical activity under the Americans With Disabilities Act (ADA). This ruling allows the lawsuit of Christina Barbuto, who had been terminated from her job for testing positive for marijuana, to move forward.
Barbuto had acknowledged the use of medicinal marijuana to treat problems associated with Crohn's disease prior to being offered a position at Advantage Sales and Marketing. She was hired with the company allegedly being aware of the mandatory drug testing potentially coming back positive for marijuana. She was terminated on the first day of employment due to a positive test for marijuana.
The precedent of this ruling and implications for the 29 states that allow for the legal use of medicinal marijuana are significant. Up until this ruling, most states had supported the employer's right to not hire or terminate based on positive testing for marijuana, as marijuana is still illegal on the federal level.
Chief Justice Ralph Gants wrote that if the most effective treatment for a medical condition as determined by a doctor is marijuana then "an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. 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's case makes the claim that her employer discriminated against her on the basis of her disability in violation of the Massachusetts Fair Employment Practices Law, violated the Massachusetts law that authorizes qualified individuals to use marijuana for medical reason and terminated her employment in violation of public policy.
The ruling specifically upheld the Medical Marijuana Act stipulation that employers have no obligation to accommodate the on-the-job use of marijuana. This ruling does not mean that Barbuto has prevailed in her claims of discrimination; it just allows the case to move forward.
The company can still build a case arguing that the use of marijuana on the part of Barbuto creates an undue hardship for the company. Hardships can be safety risks or other violations of the company's obligations. The ruling also noted that the recent legalization of marijuana for recreational use in the state has no bearing on the case.
While the ruling does not suggest use of the drug during working hours, it certainly leaves open that possibility given the complexities of testing for active metabolites from marijuana in urine, saliva or blood. Urine is the most common test used by employers, but it is poor indicator of recent acute use of marijuana.
Medicinal use of marijuana may require dosing more than once per day. Even if used only minimally, there can be residual effects that interfere with many jobs. Marijuana has been demonstrated to interfere with precise motor functions even 24 hours after use. For jobs such as operating machinery, aviation, road shipping and railroad, this can be not only costly, but also deadly.
It was inevitable that the intersection of personal rights and public safety would collide when it comes to the use of marijuana. This will be playing out in courtrooms across the country for quite some time.
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