A Win For Medical Cannabis In The Workplace

By Benjie Cooper

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With some exceptions, the use of prescription medication isn’t something that tends to cause legal problems for people in the workplace. When someone obtains a prescription from their doctor, they can take it to a pharmacy, get it filled, and use the medication as prescribed without issue. Pharmacists across the country stock their shelves with a myriad of federally-approved medications for virtually every kind of ailment known to man, available and accessible with a condition and a prescription. But this sort of normalcy is not something that medical cannabis patients have necessarily enjoyed, even though medical marijuana laws have been passed in over half of the United States.

The California Supreme Court ruled 5-2 in 2008 that employers can reserve the right to fire employees for their medical cannabis use, regardless of provisions provided in Prop 215 and SB 420. According to Justice Kathryn Mickle Werdegar on behalf of the Court, “The Compassionate Use Act does not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug.”

In 2010, a quadriplegic man from Colorado named Brandon Coats was working for Dish Network as a customer service representative when he was fired after testing positive for THC in a random drug screening. The company keeps in-stride with federal statutes, holding a zero-tolerance policy regarding employee marijuana use; medical or recreational, on the clock or not. Even in states where it is legal. Brandon started using medical cannabis at home at the recommendation of his doctors after prescription medication became less effective over time at controlling the muscle spasms in his legs. Coats brought a wrongful termination lawsuit against Dish Network before the Colorado Court of Appeals in 2013 and again in the Colorado Supreme Court in 2015 where each time, the employer’s policy was affirmed.

New Mexico resident Donna Smith was diagnosed with PTSD after serving in the military in the 1990’s and later became a medical cannabis patient after the state legalized it in 2007. Smith got a job as a physician’s assistant at Presbyterian Healthcare Services through the Advantage Locums staffing agency in 2014, but when she failed a drug screening, Presbyterian informed the company that they did not want her to finish her assignment there, and she was terminated. The healthcare facility released a public statement saying that “The use of medical marijuana is not recognized by federal law and Presbyterian has a mandate under federal law to provide a drug-free workplace.” After being fired, Smith filed a lawsuit District Court in June 2014. But after hearing arguments from both parties, Judge Nan Nash sided with Presbyterian and upheld the termination.

The list of employees fired for medical cannabis is long, and the numerous attempts to resolve the situations in their favor are met with defeat in court time after time. Federal marijuana policy and how it relates to a company’s employee guidelines appears to be the common denominator in these firings, but a recent ruling in Massachusetts may have just changed things.

Advantage Sales and Marketing hired Christine Barbuto in 2014, but the company let her go on her first day after she tested positive for THC. In the interview, Barbuto disclosed that she suffers from Crohn’s disease and irritable bowel syndrome (IBS) and that, under her doctor’s recommendation, uses cannabis at home to help with her lack of appetite, a side effect of the condition. Barbuto brought her case before the Massachusetts Commission Against Discrimination and then retracted it to refile the case in Suffolk Superior Court in 2015. The judge dismissed most of her claims, but Barbuto appealed. A six-judge panel in the Massachusetts Supreme Judicial Court ruled in a hearing on July 17, 2017, that Christina could sue the company for wrongful termination on the grounds of handicap discrimination, stating that the organization could not be subject to federal prosecution for hiring a medical marijuana patient.

In the ruling, Chief Justice Ralph Gants writes that “…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.”

The Judicial Court’s ruling is a significant one as it sends a message to Massachusetts employers that they cannot discriminate when it comes to their employee’s reasonable medicinal cannabis use when it is outside of work and in compliance with state and local law. They may, however, be responsible for the wrongful termination of a good employee. The ruling may not be applicable in every case as each situation is unique, but it could help set a precedent for employers who might be unsure of how to approach the subject of responsible medical marijuana use by their workers.

Massachusetts now becomes the second state to apply workplace anti-discrimination protections to medical cannabis users in 2017.  A Rhode Island Superior Court ruled in favor of the terminated employee in May in the Callaghan v. Darlington Fabric and the Moore Company case.