STATE DRUG TESTING LAW 101 BY ANDREW CURRENT, CURRENT CONSULTING GROUP


Massachusetts Supreme Court, Court Rulings, and the Future of Medical Marijuana


What Barbuto really means for employers is that they need to act now or bear the cost of marijuana legalization for decades to come.


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n the wake of a recent Massachusets Supreme Court ruling, Barbuto vs. Advantage Sales & Marketing, alarming


headlines such as the Boston Globe’s “Ruling Means Mass. Companies Can’t Fire Workers for Medical Marijuana” or Biz Journal’s “Massachusets Supreme Judicial Court Rules in Favor of Employee Fired for Using Medical Marijuana,” set off waves of concern. While these headlines may be eye-catching, they do not accurately convey what truly happened or what the ruling really means for employers. In the case of Barbuto vs. Advantage


Sales & Marketing, lower state courts had ruled that the appellant did not have a legal case against her employer for disability discrimination. The Massachusetts Supreme Court ruled that a medical marijuana patient did indeed have the right to bring legal action against her employer for disability discrimination. It is important to note that the court did not rule on whether the employer had discriminated. Still, the ruling caught many employers and drug testing providers by surprise. To fully understand the issue and the reasoning, we must first look upon this provision from the Massachusetts medical marijuana law: “A person meeting the requirements under this law shall not be penalized under Massachusets law in any manner, or denied any right or privilege, for such actions.” (MGL XV-94G[4]) Te Massachusets medical marijuana


law protects against an individual being denied a legal right solely because of his or her status as a medical marijuana user. In


Barbuto vs. Advantage Sales & Marketing, the court cited the Massachusets disability discrimination law, which requires an employer to seek a reasonable accommodation with a qualified disabled individual. Since the employer in the case had refused to hire the plaintiff aſter testing positive for marijuana, they denied her the legal right to at least seek a reasonable accommodation.


What Barbuto vs. Advantage Sales & Marketing Does Not Mean Barbuto does not mean that employers may no longer test employees for marijuana. It does not mean that employers should stop testing job candidates for marijuana. It does not mean that employers should no longer enforce a drug-free workplace. And it does not mean that employers may no longer terminate workers for medical marijuana use. Te court stated: “Te [medical marijuana] act… makes clear that it does not require ‘any accommodation of any on-site medical use of marijuana in any place of employment.’ Tis limitation implicitly recognizes that the off-site medical use of marijuana might be a permissible ‘accommodation’…” (emphasis added) Te court reasoned that accommodating


off-site use might be permissible when a qualified individual suffers from a debilitating condition for which there is no equally effective alternative treatment. Te court went on to state that aſter entering an interactive process of discussing an accommodation, an employer may conclude that the accommodation is


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datia focus


winter 2018


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