The Massachusetts Supreme Judicial Court has fired a shot that will be heard around the country: for the first time a state court has ruled that the use of medical marijuana may be protected and that terminating an employee for failing a drug test may be discriminatory.
Christina Barbuto suffers from Crohn’s Disease. In her application for a position with Advantage Sales and Marketing, she disclosed that she used medically-prescribed cannabis several nights a week: “I explained to them that I just used a very small amount before meals. It wasn’t a “high” feeling, it was just getting me hungry and doing what the doctor told me.”
The local hiring manager accepted her explanation and offered her a job. On her first day at work, she was fired for failing a drug test. The Supreme Judicial Court has ruled that her termination may be discriminatory and referred the case back to Superior Court for reconsideration.
Legal or Illegal?
There are powerful and contradictory forces at work in this situation. The employer notes that marijuana is illegal under federal law and that Barbuto’s termination was not discriminatory, as the drug policy applies equally to all employees. The high court responded that the employer cannot rely on blanket policies and must at least explore reasonable accommodations for Barbuto’s disability.
In order to terminate an employee using this – or any – prescribed medication, an employer would have to prove that accommodation would be a hardship and that the drug use impairs the employee’s ability to perform the job safely. (Safety is not a likely an issue in Barbuto’s largely clerical job.)
Employer advocates worry that the ruling will create hardships for small businesses, which will have to work through and document an accommodation process before terminating people who fail a drug test. This may well be true, but it is equally true that motivated employees who are using appropriate medications deserve a fair chance to do the job.
Massachusetts has become the first state to require employers to move beyond the simplistic “pass/fail” approach to drug testing in the workplace. Others are likely to follow. We, in turn, will continue to track developments in this fascinating conundrum.
Senior Workers Compensation Consultant