In Barbuto v. Advantage Sales and Marketing, the Supreme Judicial Court recently blazed a trail as the first state high court to extend state employment protections to medical marijuana users where those protections were not explicitly spelled out in the medical marijuana statute. The SJC unanimously gave the green light to discrimination claims by those who use medical marijuana under state law but then are punished by employers. There are limits to the court’s holding; for instance, the medical marijuana statute specifies that employers do not need to accommodate on-site use of marijuana, and an employer can still take adverse actions by meeting the high burden of showing an “undue hardship” for tolerating off-site marijuana use. But many patients who consume marijuana to treat debilitating medical conditions like cancer or, like the plaintiff Barbuto, Crohn’s disease, will get some relief by not having to choose between effective treatment and keeping their jobs.
In Barbuto, the plaintiff was hired subject to a drug test and started working. She informed her employer that she would test positive for marijuana because she used it for medical purposes according to state law because she suffered from Crohn’s disease. The hiring manager told her that would not be a problem, but after the test came back positive, she was fired by a manager who told her “we follow federal law, not state law.” (Any use or possession of marijuana remains illegal under federal law, although for several years Congress has prohibited federal authorities from spending money to interfere with state medical marijuana laws.) The plaintiff brought suit claiming, among other things, disability discrimination, and the lower court dismissed her case.