Mass.: Case Tests Medical Marijuana at Work

By Diane Cadrain Jun 9, 2015
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A Brewster woman is suing her employer, Advantage Sales and Marketing, after it fired her when a drug test revealed the presence of marijuana in her system, the BostonGlobe reported on May 23, 2015. Although Christina Barbuto said she told the company during her interview that she takes the drug legally, with a doctor’s permission, to fight symptoms of Crohn’s disease, she was fired on her first day of work.

Barbuto filed a complaint with the Massachusetts Commission Against Discrimination (MCAD).

According to the Massachusetts Medical Society, the state’s medical marijuana law is silent on the application of company drug-testing policies to employees who obtain and use medical marijuana legally under state law.

But courts in other medical marijuana states, the Society maintains, have consistently upheld employers’ policies that screen for the use of drugs, including marijuana. Such courts have also upheld the employer’s right to terminate a current employee who tests positive for use of medical marijuana, whether or not the employee was working while under the influence, the Society states.

Massachusetts law is silent on these matters.

Some take issue with employers’ freedom to take adverse action against employees across the board, without regard to the job or the situation.

“Drug testing without cause is a holdover from the Reagan administration’s failed “war on drugs,’ maintained Leonard H. Glantz, a professor of health law, bioethics, and human rights at Boston University School of Public Health. Writing a letter to the editor of the Globe, Glantz further stated that “[p]rivate employers, such as Barbuto’s employer, Advantage Sales and Marketing, have become law-enforcement agencies. While there may be reasons to test employees in safety-sensitive positions, such as airline pilots, there is no reason for employers to routinely test employees who work in marketing.”

Barbuto’s case will take a step toward resolving those conflicting approaches.

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.

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