The Massachusetts Supreme Judicial Court has ruled that Cristina Barbuto, fired for using cannabis to treat Crohn’s Disease, has a right to sue for handicap discrimination. Here is the ruling in Barbuto v. Advantage Sales.   The justices make the point that the federal government’s designation of marijuana as a Schedule I substance defies the plain meaning of simple English words: “accepted medical use.”

“Nor are we convinced that, as a matter of public policy, we should declare such an accommodation to be per se unreasonable solely out of respect for the Federal law prohibiting the possession of marijuana even where lawfully prescribed by a physician. Since 1970 when Congress determined that marijuana was a Schedule I controlled substance that, in contrast with a Schedule II, III, IV, or V controlled substance, “has no currently accepted medical use in treatment in the United States,” nearly ninety per cent of the States have enacted laws regarding medical marijuana that reflect their determination that marijuana, where lawfully prescribed by a physician, has a currently accepted medical use in treatment. To declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

The justices also note:

“The language of the Massachusetts medical marijuana act distinguishes this case from a California Supreme Court decision that denied an employee’s challenge under the State’s handicap discrimination law to a termination based on the employee’s use of medical marijuana. The California medical marijuana law at issue in Ross v. RagingWire Telecomm. Inc., did not contain language protecting medical marijuana users from the denial of any right or privilege.”

“In other published cases where State Supreme Courts have rejected employees’ claims for relief from their termination of employment because of their use of medical marijuana, the employees did not bring handicap discrimination claims. In Coats v. Dish Network, LLC, 350 P.3d 849, 851 (Colo. 2015), the plaintiff brought a wrongful termination claim, alleging that his termination was in violation of a State statute that barred an employer from discharging an employee based on the employee’s participation in “lawful activities” off-site during nonworking hours. The Supreme Court of Colorado affirmed the dismissal of the claim, concluding thatthe Legislature did not intend the statute to apply to an activity, such as the possession of marijuana, that was unlawful under Federal law. Id. at 853. In Roe v. Teletech Customer Care Mgt. (Colorado) LLC, 171 Wash. 2d 736, 760 (2011),  the Washington Supreme Court affirmed the allowance of summary judgment in favor of the employer on the plaintiff’s wrongful termination claims, holding that the State’s medical marijuana law did not create a private right of action and did not proclaim a public policy prohibiting the discharge of an employee for medical marijuana use.”

The facts of the case are thoroughly explained by Elizabeth Bosfield of the Insurance Journal:

Plaintiff Cristina Barbuto, accepted an offer for an entry-level position with defendant Advantage Sales and Marketing (ASM) in the summer of 2014.

Barbuto was required to take a mandatory drug test, and she told her supervisor she would test positive for marijuana as a result of her Crohn’s Disease. Because her physician prescribed marijuana for medical purposes, she was considered a qualifying medical marijuana patient under Massachusetts law. She informed her supervisor that she did not use marijuana daily and would not consume it before or at work

Barbuto’s supervisor confirmed with others at ASM that her medicinal use of marijuana would not be a problem, the court document stated.

After Barbuto submitted a urine sample for the mandatory drug test, the court document said she attended an ASM training program and completed her first day of work without using marijuana at the workplace or reporting to work intoxicated. That evening, however, defendant Joanna Meredith Villaruz, ASM’s human resources representative, told Barbuto she was terminated for testing positive for marijuana. Villaruz informed Barbuto this is because ASM follows federal rather than state law.

Following her termination, Barbuto filed a verified charge of discrimination against ASM and Villaruz with the Massachusetts Commission Against Discrimination (MCAD), which she later withdrew in order to file a complaint in the Superior Court. The complaint included six claims for handicap discrimination, interference with her right to be protected from handicap discrimination, aiding and abetting ASM in committing handicap discrimination, invasion of privacy, denial of the right to use marijuana lawfully as a registered patient to treat a debilitating medical condition, and violation of public policy by terminating her for lawfully using marijuana for medicinal purposes. The second and third claims were brought against Villaruz alone, while the rest were brought against both ASM and Villaruz.

After unsuccessfully trying to remove the case to United States District Court, the defendants filed a motion to dismiss the complaint in the Superior Court.

The judge allowed the motion to dismiss for all counts except the invasion of privacy claim. At the request of Barbuto, the judge entered a separate and final judgment on the dismissed claims and stayed the invasion of privacy claim pending appeal. Barbuto then filed a notice of appeal regarding the dismissed claims, according to the court document.

In her complaint, Barbuto alleged she is a qualified handicapped person because she is capable of performing the essential functions of her job with a reasonable accommodation to her handicap. In this case, the requested accommodation was a waiver of ASM’s policy barring anyone from employment who tests positive for marijuana. This way, Barbuto could continue using prescribed medical marijuana without violating ASM’s policy.

Under Massachusetts law, a plaintiff can allege a claim of handicap discrimination only if the necessary accommodation requested is facially reasonable, the court document said.

The defendants argued Barbuto’s requested accommodation was not facially reasonable because the only accommodation she sought – her continued use of medical marijuana – is a federal crime, the court document said.

Additionally, they stated that even if she were a qualified handicapped person, she was terminated because she failed a drug test that all employees are required to pass, not because of her handicap.

Under federal law, marijuana is still considered a Schedule I controlled substance under the Controlled Substances Act, and possession of it is considered a crime regardless of whether it is prescribed by a physician for medical use.

In 2012, however, Massachusetts voters approved the initiative petition, “An Act for the humanitarian medical use of marijuana,” stating that there shouldn’t be punishment under state law for qualifying patients using medical marijuana.

Like Massachusetts, nearly ninety per cent of states in the U.S., as well as Puerto Rico and the District of Columbia, allow the limited possession of marijuana for medical treatment, the court document said.

The court found that as a result of the act under Massachusetts law, 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. It also found that if medical marijuana is the most effective medication for the employee’s condition, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.

Additionally, the court found that Barbuto’s possession of medical marijuana violating federal law does not make it unreasonable as an accommodation and would not put ASM at risk for joint possession or aiding and abetting its possession.

“To declare an accommodation for medical marijuana to be per se unreasonable out of respect for federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of states, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions,” the court document said.

The court decided to reverse the dismissal of the counts in the complaint alleging handicap discrimination, but it stated this decision does not necessarily mean Barbuto will succeed in proving handicap discrimination.

“The defendants at summary judgment or trial may offer evidence to meet their burden to show that the plaintiff’s use of medical marijuana is not a reasonable accommodation because it would impose an undue hardship on the defendants’ business,” the court document said.

That said, the Massachusetts Supreme Court reversed the dismissal of count 1 in the complaint, which alleged handicap discrimination, and counts 2 and 3 against Villaruz, alleging that she aided and abetted ASM’s handicap discrimination and interfered with the plaintiff’s exercise of her right to be free from handicap discrimination.

The court concluded that Barbuto can seek a remedy through claims of handicap discrimination in violation of Massachusetts law. It also decided there was no implied statutory private cause of action under the medical marijuana act and that Barbuto failed to state a claim for wrongful termination in violation of public policy. As a result, the court affirmed the dismissal of those claims.

The case was remanded to the Superior Court for further proceedings consistent with the Supreme Court’s opinion.

O’Shaughnessy’s Retro Message

If ever there was a job in which employees should be allowed to medicate with marijuana, it would be sitting in a cubicle making sales calls. Obviously, there is no physical danger involved. Some bosses somewhere must realize that marijuana could make some of their employees more sociable and therefore, better at establishing rapport with their unseen customers and pitching products.

We must get five or six telemarketing calls a day. A computer must be dialing several numbers at once and it may take a few seconds before the caller comes on the line. You listen to the grainy void. (My wife hates  these intrusions but I tell myself it’s good that they got me up from the computer.) You don’t want to just slam the phone down because it could be someone you know calling from far away. I say “Can’t hear you” and hang up (often just as the cheerful voice is coming on.)  Their script usually calls for something like, “This is Jennifer. How are you today?” which would be rude to hang up on. So I say, “We’re broke, Jennifer, sorry,” as I put the receiver down calmly.

It’s a damn shame that California’s upcoming “legalization” law does not protect medical marijuana users whose job performance is unimpaired and who don’t bring marijuana to the job site. Dale Gieringer, Dale Sky Jones and their allies in a grassroots group called ReformCA spent much of 2015 drafting a legalization initiative that would have protected such workers. But ReformCA could not get funding for a signature drive to put their measure  on the ballot. They shared their polling with the Richie Riches who funded Prop 64, but job protection for unimpaired medical marijuana users was rejected.