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Massachusetts case complicates decision-making on workplace marijuana testing

August 1, 2017
by Gary A. Enos, Editor
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Companies in states that allow medical use of marijuana are taking note of a July court action in Massachusetts that appears to restrict that state's employers from firing workers with a marijuana use certification simply for using the drug.

In a decision that legal experts are calling the first of its kind in the country, the Massachusetts Supreme Judicial Court affirmed an employee's right to use medical marijuana, in a case in which a marketing company fired an employee with Crohn's disease who failed a company drug test for marijuana. The case, which has been remanded to the state Superior Court to be heard there, signals that Massachusetts workers who are certified by a physician to use marijuana could file a discrimination lawsuit against an employer for firing them.

Supreme Judicial Court Chief Justice Ralph D. Gants wrote in the July 17 decision that “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.”

Court records in the case stated that the employee, Cristina Barbuto, did not use marijuana daily or in close proximity to work hours. After she failed the drug test, the human resources office at employer Advantage Sales and Marketing told her that the company followed federal and not state law regarding marijuana use.

An administrator with a consulting firm specializing in workplace drug testing policies tells Addiction Professional that the Massachusetts case likely will lead to a flurry of challenges of employer policies in other states.

Nina French, managing partner of The Current Consulting Group, warns that it would be misguided, however, for employers to react to this court action by loosening workplace testing policies or ending testing for marijuana altogether. Executives that believe that in doing so they would be protecting themselves against lawsuits from employees who use marijuana medically would in turn be exposing themselves to significant liability elsewhere, by weakening their effort to secure a safe and drug-free workplace, she suggests.

“The conventional wisdom is to follow federal law as policy,” says French. “That's the safest bet. But it doesn't protect you from lawsuits. You can be sued no matter what your policy is.”

Reasonable accommodation

Those watching the progress of the Massachusetts case say that even if the fired employee does not prevail at the lower-court level, the affirmation by the state's highest court of an employee's right to use medical marijuana suggests that companies in the state will have to provide reasonable accommodation for workers who qualify.

Some legal experts expressed surprise over the Supreme Judicial Court's ruling because the state had not explicitly written into law any worker protections related to medical marijuana.

French says that the Massachusetts case could persuade some business consultants to advise companies in states with medical and/or recreational marijuana laws to loosen their marijuana testing policies, although she emphasizes that she believes this is the wrong approach (especially given the potential effects of the increasingly potent marijuana that is consumed today).

“At the moment people are sticking to their guns and following the federal law, and testing,” French says. “But they are struggling to navigate it all.”

She adds in reference to the Massachusetts case, “This was the first red flag for [companies] starting to realize, 'Maybe we're not as protected as we thought we were.'”

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