Massachusetts High Court: Patient Fired for Medical Marijuana Use Can Sue for Discrimination

BOSTON, MA — Massachusetts’ highest court ruled on Monday that a medical marijuana patient could sue her former employer for discrimination after being fired for testing positive for the substance in a drug test.

The Massachusetts Supreme Judicial Court rejected the argument made by Advantage Sales and Marketing that the patient, Christina Barbuto, could not sue for discrimination because marijuana remains illegal under federal law, even though it is authorized in Massachusetts.

According to attorneys, Barbuto was fired after her first day on the job because she tested positive for marijuana, for which she was an authorized patient under Massachusetts’ medical marijuana program.

Barbuto’s doctor had certified her for medical marijuana use as an appetite stimulant.  Barbuto suffers from Chron’s disease and irritable bowel syndrome, and suffers from a loss of appetite as a side effect of the two ailments.

In the unanimous 6-0 decision, the court ruled that if a doctor determines that medical marijuana is the most effective treatment for a debilitating condition, employers must make an exemption to their drug policy to provide “reasonable accommodation” to the employee.

“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,” Chief Justice Ralph Gants wrote in the decision.

The court noted that while marijuana is still illegal under federal law, only the employee, not the company, would be at risk for prosecution under federal law for her marijuana use.

“This is the highest court in Massachusetts recognizing that the use of medically prescribed marijuana is just as lawful as the use of any prescribed medication,” said attorney Matthew Fogelman, who represented Barbuto.

Medical marijuana has been authorized in Massachusetts since a 2012 voter approved referendum.  In 2016, voters went one step further, legalizing the adult use of marijuana for anyone 21 years old or older.  Marijuana possession is a decriminalized civil offense for those under 21 who do not possess a medical marijuana authorization.

Medical marijuana advocates hailed the decision, saying the ruling represents a major win for patients rights and could set a precedent for those in other states where medical marijuana is authorized under state law.

“Patients should never have to choose between their heath and their job and for the first time, a court has acknowledged that they shouldn’t have to,” NORML Executive Director Erik Altieri said.

“It is our hope that courts in other jurisdictions begin to apply this same rationale to patients as well as to all adults who are using cannabis responsibly off-the-job in compliance with the laws of their states.”

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