The Supreme Judicial Court of Massachusetts has been challenged to determine whether a company has the right to terminate an employee for using medical marijuana off the clock.
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Cristina Barbuto, who uses cannabis to treat Crohn’s disease, told Advantage Sales and Marketing when she was hired about her participation in the state’s medical marijuana, but she was fired back in 2014 after testing positive for THC during a random drug screen. Her attorneys argue that the company crossed a line because she was simply following doctor’s orders and the laws of the state.
“If the patient has a condition, and the patient and the doctor have arrived at a course of treatment, recommended by the physician, legally prescribed by the physician, the employer should not be inserting themselves into that relationship,” attorney Matthew Fogelman told the state’s highest court.
But legal counsel for Advantage Sales and Marketing retaliated against this claim, saying their client adheres to the drug laws outlined by the federal government, which still considers marijuana an illegal substance. Furthermore, Attorney Michael Clarkson argued that there are no laws on the books in Massachusetts intended to protect employees from being disciplined for using medical marijuana.
“If you look, for instance, at New York, the statute finds that anyone who is entitled to a medical marijuana card shall be deemed ‘disabled’ under the New York civil rights law,” Clarkson said. “Nevada law requires that employers specifically accommodate medical marijuana. That’s not true here.”
The Supreme Judicial Court is considering a variety of scenarios pertaining to the lawsuit, including how an employee’s use of opioid medications was any different from medical marijuana. So far, the court has not yet revealed a verdict.
A similar case was heard a few years ago by the Colorado Supreme Court, which resulted in a victory for a company that fired an employee for off-duty medical marijuana use. Ultimately, the justices decided that since marijuana remains illegal under federal law, medical marijuana patients were using the substance at their own risk.
“Therefore, employees who engage in an activity, such as medical marijuana use, that is permitted by state law but unlawful under federal law are not protected by the statute,” Justice Allison H. Eid wrote in the opinion.
Lawmakers in some legal states are now pushing for legislation aimed at protecting employees from being fired for using marijuana. Until the federal government changes its policy on the herb, state-level laws may be the only hope medical marijuana patients have in avoiding the unemployment line.