Not yet a Member?
HR Magazine is highlighting the next generation of HR leaders.
Is your employee handbook ready for the New Year? With SHRM’s Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Attend a comprehensive, instructor-led review before you sit for your SHRM exam.
Learn to implement the complex changes and ensure compliance with the FLSA. 2-Week Virtual Seminar, Nov 29-Dec 8.
A Massachusetts woman who claims she was fired from her job for using marijuana, which was legally obtained for medical reasons related to her Crohn’s disease, has sued her former employer.
Cristina Barbuto said in court papers that she told her employer, Irvine, Calif.-based Advantage Sales and Marketing, before she was hired that she had obtained written certification from her doctor to purchase marijuana under the state’s 2012 voter-approved medical marijuana law. Barbuto said the drug helps her counter the effects of the disease and maintain her weight.
The lawsuit, filed the first week of September in Suffolk County Superior Court in Boston, states that she never used marijuana before work or while working, and that she typically used it two or three times a week at home in small quantities and did not feel intoxicated when she did.
According to the lawsuit, Barbuto warned the employer before she was hired that she would test positive for marijuana and was told by company officials that her use of the drug would not be a problem. But after her first day of work in 2014, promoting products in a supermarket, she tested positive for marijuana and was subsequently fired, the lawsuit claims.
When she complained about her dismissal, Barbuto said, a human resources representative told her that the company, which has offices not just in Massachusetts but nationwide, follows federal, not state, law.
Barbuto is seeking damages for lost wages, lost benefits, attorney’s fees and emotional distress. She also wants to be reinstated in her job.
Although the possession and use of marijuana is still a violation of federal law, marijuana is currently legal in 23 states for medical purposes. The question for employers in those states becomes, “If they generally require a clean drug test as a condition of employment, are they now required to forgo drug testing or accept a positive result for marijuana?” Tamsin Kaplan, an employment lawyer at Davis, Malm & D'Agostine in Boston, told SHRM Online.
Similar workplace lawsuits have been filed in other states where marijuana is legal for medicinal or recreational use, but Barbuto’s lawsuit is the first of its kind in Massachusetts, Kaplan said.
And while the Massachusetts medical marijuana law says that employers are not required to permit an employee to use marijuana on the worksite, it does not say whether an employer has to accommodate someone who is using medical marijuana legally outside of work.
The lawsuit raises four separate legal arguments, Kaplan said. First, Barbuto claims that her use of marijuana is protected under the medical marijuana law itself. One part of that law says that “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 claims that by firing her, Advantage was denying her a right The lawsuit raises four separate legal arguments, Kaplan said. First, Barbuto claims that her use of marijuana is protected under the medical marijuana law itself. One part of that law says that “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 claims that by firing her, Advantage was denying her a right under this section of the law.
Barbuto is also claiming violations of the federal Americans with Disabilities Act as well as the state’s nondiscrimination law, saying that she was entitled to a reasonable accommodation for her medical condition. Such an accommodation could be allowing her to test positive for marijuana—or not drug testing her at all.
Next, she is claiming that her termination is a discharge in violation of public policy. Although under Next, she is claiming that her termination is a discharge in violation of public policy. Although under the at-will doctrine employers can generally terminate an employee for any reason or no reason at all, an employee cannot be terminated for a reason that violates public policy. “Barbuto is saying that the public policy of allowing her to use marijuana for her illness trumps the nature of at-will employment,” Kaplan said.
Barbuto’s final claim is under a state law that provides, “A person shall have a right against unreasonable, substantial or serious interference with his privacy.” Courts interpreting this law have previously held that a urine test can be intrusive and violate privacy rights in an employment setting if the employer does not have a legitimate business reason that outweighs the employee’s privacy interest.
“I think the privacy claim is the strongest one,” Kaplan said. As long as there is no countervailing safety interest that would outweigh the employee’s right to privacy, Barbuto might be able to prevail on this argument under Massachusetts law, she said.
An employer has a duty to keep employees and the public safe, Kaplan noted. She mentioned an earlier case in which two employees claimed that their employer’s requirement that they undergo a urine drug test violated the state’s privacy law. One employee had a desk job; the other operated a company-owned car. The court issued a split opinion, ruling that the duties associated with the desk job did not require a urine test and therefore that worker’s rights were violated. As for the employee who was a driver, however, the court ruled there was no privacy breach.
In cases where an employee’s use of medical marijuana is at issue, “I advise my clients to focus on whether there is some safety interest that outweighs the employee’s privacy rights,” Kaplan said. “If there are no compelling safety issues, look at the employees’ performance. Are they doing a good job? Are they meeting the requirements of the position?”
Kaplan said that judges in other states—including California, Montana and Washington—have generally found in favor of employers, ruling that they can fire employees for using medical marijuana because these individuals are not complying with federal law. But those cases are not binding in a Massachusetts court, and each state's medical marijuana law has different wording, so a Massachusetts judge could potentially rule otherwise.
And, although, so far employers have been prevailing in these lawsuits, “I think that the tables will turn. Sooner or later, employers who take a hard line will be in trouble,” Kaplan said.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Choose from dozens of free webcasts on the most timely HR topics.
SHRM’s HR Vendor Directory contains over 3,200 companies