Cristina Barbuto was hired into an entry-level position by Advantage Sales and Marketing in the late summer of 2014. Advantage Sales and Marketing, LLC (ASM) claims to be one of North America’s leading sales and marketing agencies specializing in outsourced sales and merchandising representatives to producers of food products and consumer goods.
After hire, an ASM representative left a message for Barbuto stating that she was required to take a mandatory drug test. Barbuto responded to her supervisor that she would test positive for marijuana, explaining that she suffers from Crohn’s disease, a debilitating gastrointestinal condition. She went on to explain that she was a qualifying medical Marijuana Cardholder under Massachusetts law and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes. Barbuto assured her supervisor that she did not use marijuana daily and would not consume it before work or at work. Barbuto went on to explain that as a result of her Crohn’s disease, and her irritable bowel syndrome, she has “little or no appetite,” and finds it difficult to maintain a healthy weight and using marijuana two or three times a week after work had helped her gain fifteen pounds and maintain a healthy weight.
In response, the supervisor told Barbuto that her medicinal use of marijuana “should not be a problem,” but that he would confirm this with others at ASM. The supervisor later telephoned Barbuto and confirmed that her lawful medical use of marijuana would not be an issue with the company.
On September 5, 2014, Barbuto was subject to a ASM’s mandatory urine drug test. A few days latter she went to an ASM training program, where she was given a uniform and assigned a supermarket location where she would promote the products of ASM’s customers. On September 12 Barbuto completed her first day of work, but that evening ASM’s Human Resources representative informed Barbuto that she was terminated for testing positive for marijuana. The HR representative told Barbuto that ASM did not care if Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.”
Barbuto filed a verified charge of discrimination against ASM and the HR representative with the Massachusetts Commission Against Discrimination and later filed suit in the Massachusetts Superior Court, alleging handicap discrimination under Massachusetts law, a private right of action under the Massachusetts Medical Marijuana Act, and various other state law claims which were dismissed, except for an invasion of privacy claim. Barbuto then appealed directly to the Massachusetts Supreme Court.
On July 17 the Massachusetts Supreme Court ruled in favor of Barbuto, holding as follows: “In 2012, Massachusetts voters approved the initiative petition entitled, An Act for the humanitarian medical use of marijuana, St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is “that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana.” Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff’s discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.”
Three Employer Safe Harbors for Marijuana Prohibitions left open by the Massachusetts Supreme Court as presenting possible undue hardships for an employer:
- “For instance, an employer might prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an “unacceptably significant” safety risk to the public, the employee, or her fellow employees.”
- “Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety‐sensitive employee subject to drug testing under the department’s drug testing regulations from using marijuana.”
- “In addition, we recognize that Federal government contractors and the recipients of Federal grants are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to make “a good faith effort . . . to maintain a drug-free workplace,” and prohibits any employee from using a controlled substance in the workplace.”
Common Sense Counsel:
- Marijuana Proofing your Drug Free Workplace Policy just got more complicated. But taking these steps now will reduce the risk of a successful employee challenge:
- Update job descriptions to include “safety sensitive position” and the “ability to work in a constant state of alertness and safe manner” as an essential job function;
- Update the drug-free workplace policy to bring it into compliance with state laws and to include a “pre-duty impairing effects” disclosure language as part of a “safety rule”.
- Treat all impairing effect medications equally to avoid a medical marijuana discrimination/not compassionate/handicap discrimination claim;
- Engage in an interactive discussion with MM Cardholders in the states with sticky medical marijuana laws, like Massachusetts;
- Make employees aware of Marijuana drug free contractual commitments, gate entry requirements and restrictions that would adversely affect your company’s right to do business; and
- Make it all about safety in your policy, written documentation, training and evaluation of your workplace concerns.
About the Author
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and drafts state-compliant drug-free workplace programs for employers in all 50 states. He can be contacted at teden@constangy.com or 334-246-2901.
