Source – When Cristina Barbuto of Brewster took a job with a marketing firm, she told the company that she used medical marijuana to treat symptoms of Crohn’s disease.
Barbuto says she worked for only one day for Advantage Sales and Marketing, promoting products in a supermarket, and then the company fired her. The reason they gave was that Barbuto failed a required drug test by testing positive for marijuana.
When she complained, she said a human resources representative told Barbuto that the company, which has offices nationwide and in Massachusetts, follows federal, not state law.
Barbuto’s claims were laid out in a complaint she filed in Suffolk County Superior Court accusing Advantage Sales and Marketing of discrimination and invasion of privacy.
Barbuto’s case is the first of its kind in Massachusetts, but her circumstances are not unique. Massachusetts’ fledgling medical marijuana law is largely silent on an employer’s responsibility toward an employee who uses medical marijuana after hours. As medical marijuana dispensaries begin to open and more Massachusetts residents start to use medical marijuana, experts say the question will have to be decided either by the courts or the Legislature.
“Current medical marijuana law and regulations do not address the issue of employment discrimination,” said Nichole Snow, executive director of the Massachusetts Patient Advocacy Alliance, which represents medical marijuana patients. “Patients have a false sense of security that they’re going to be protected by the medical cannabis law….No one realizes that there’s no explicit protection in the law.”
Massachusetts’ medical marijuana law explicitly says that employers do not have to accommodate marijuana use in the workplace. But it says nothing about whether employers can forbid medical marijuana use outside the workplace.
Barbuto’s lawyers are seizing on a provision in the law that says a medical marijuana user cannot be penalized under Massachusetts law or “denied any right or privilege” because of using medical marijuana.
They use Massachusetts’ anti-discrimination and privacy laws to argue that the marketing firm discriminated against Barbuto because of her disability and because she treated it with medical marijuana. Even though federal law forbids marijuana use, Barbuto’s lawyers say there is no federal law preventing a company from hiring someone who uses marijuana.
Barbuto’s attorney, Matthew Fogelman, a Newton lawyer specializing in employment law, said Barbuto is able to manage her Crohn’s disease, which causes inflammation of the digestive tract, and perform her job with proper treatment – including the use of medical marijuana at home. “We believe the company discriminated against Ms. Barbuto due to her medical condition and refused to provide a reasonable accommodation to her, which is the use of medical marijuana to treat her medical condition,” Fogelman said.
Fogelman said Barbuto has a certificate from a doctor. Under state law, he said, “She is lawfully entitled to use marijuana for medicinal purposes to treat her medical condition and improve her life.”
Barbuto is also represented by Adam Fine, a Boston lawyer who has tried medical marijuana cases around the country and is active in the campaign to legalize recreational marijuana in Massachusetts.
I think it will increasingly be an issue, and I think it begs for regulation.
A spokesman for Advantage Sales and Marketing did not return calls.
Barbuto’s case is the first to go to court in Massachusetts, but she is not alone. Templeton resident Steven Drury told The Republican/MassLive.com before a Statehouse hearing in July that he is a union carpenter who has not worked since 2010 because he takes medical marijuana to treat ulcerative colitis and his union requires a drug test. “The union won’t allow me to work because I have THC in my blood,” Drury said.
Chris Geehern, a spokesman for Associated Industries of Massachusetts, a business trade group, said employers are concerned about medical marijuana use as well. “It’s an issue we hear about on a regular basis from employers who are trying to balance workplace safety with the changing laws surrounding medical marijuana use,” said Geehern.
Tamsin Kaplan, an employment lawyer at Davis, Malm & D’Agostine in Boston, said she is often asked by the employers she represents how to deal with medical marijuana use outside the workplace. “It’s a huge issue,” Kaplan said.
Kaplan said while the medical marijuana law does not address it, she looks at privacy and discrimination law and advises clients that they can require drug tests if there is an issue of safety – for example, for a forklift driver. But if there is no safety issue, she tells clients to judge an employee by their performance at work.
“I advise clients to carefully balance legitimate business interests that are at stake against the privacy interest of the employee,” Kaplan said.
Kaplan said 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. But those cases are not binding on a Massachusetts court and each state’s medical marijuana law has different wording, so a Massachusetts judge could potentially rule otherwise.
Anyone working for the federal government or subject to federal regulations – such as truck drivers – may be drug tested and cannot use marijuana due to the federal law.
The confusion has led to calls to change state law. State Rep. Frank Smizik, D-Brookline, has sponsored a bill that would bar employment discrimination against medical marijuana users, prohibiting companies from using a worker’s status as a medical marijuana patient against them in hiring or firing.
“Currently, medical marijuana patients have to worry not only about their medical issues, but whether their current or future employment is in jeopardy,” Smizik said. “As a state, we have chosen to recognize the benefits of medical marijuana, and this choice comes with the responsibility of ensuring that patients can access their medicine without the fear of losing their livelihoods.”
State Sen. John Keenan, D-Quincy, an opponent of medical marijuana legalization who has called for a tightening of the state’s medical marijuana laws, said he thinks employer-employee relations will increasingly become problematic as more people start using medical marijuana. For example, he said a company might have one employee using medical marijuana for a legitimate medical purpose and another who has a medical marijuana certification but is using the drug recreationally. “How does an employer differentiate between those and should there be a need for an employer to differentiate?” Keenan said.
“I think it will increasingly be an issue, and I think it begs for regulation,” Keenan said.