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Employer must face discrimination claim in medical marijuana case

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A company that fired a worker who tested positive for marijuana even though she was authorized to use it by her physician must face a claim of handicap discrimination, the Massachusetts Supreme Court ruled Monday.

Cristina Barbuto accepted an entry level position at Advantage Sales and Marketing in the summer of 2014. Ms. Barbuto, who was authorized by her physician to use marijuana to stimulate her appetite and help with symptoms of Crohn’s disease, told Advantage she would test positive for marijuana on drug screens. A supervisor told Ms. Barbuto her medicinal use of marijuana “should not be a problem,” which he later confirmed after consulting with others at the company, according to court documents in Cristina Barbuto vs. Advantage Sales and Marketing L.L.C.

In September 2014, Ms. Barbuto submitted a urine sample for a mandatory drug test and then completed her first day of work promoting the company’s products at a supermarket. Later that day, Advantage’s human resources representative informed Ms. Barbuto she was being terminated for testing positive for marijuana. Ms. Barbuto said she was told by the HR representative that the company did not follow state laws allowing medical use of marijuana but rather followed federal law, which classifies marijuana as an illegal substance, court records show. Massachusetts voters approved medicinal marijuana in 2012.

Ms. Barbuto filed discrimination charges against Advantage and the HR representative with the Massachusetts Commission Against Discrimination alleging six claims, including handicap discrimination, invasion of privacy and denial of the right to use marijuana lawfully as a registered patient to treat a debilitating medical condition. A trial court judge dismissed all claims except the invasion of privacy claim, and Ms. Barbuto appealed to the state Supreme Court.

A six-judge panel of the Massachusetts high court reversed the lower court judge’s dismissal of  Ms. Barbuto’s claim for handicap discrimination and related claims, but affirmed the motion to dismiss on counts claiming an implied private cause of action and wrongful termination in violation of public policy.

“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,” the court ruled. “The only person at risk of federal criminal prosecution for her possession of medical marijuana is the employee. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.”

“We conclude that the plaintiff may seek a remedy through claims of handicap discrimination … and therefore reverse the dismissal of the plaintiff's discrimination claims,” the court said.

The court remanded the case to the Massachusetts Superior Court for further proceedings.

“We’re pleased that the court ruled in our favor with regard to two of the plaintiff’s claims,” said Michel Clarkson, a Boston-based attorney with law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C., which represented Advantage. “We are disappointed with the reversal and remand of the remaining claim. We have not yet had the opportunity to litigate the plaintiff’s remaining claim on the merits, but we are confident that our client acted in accordance with the law. We are weighing our options.”