Employment lawyers are talking a lot
about marijuana in the workplace. An increasing number of states, including
Illinois, have legalized recreational use marijuana.
There is no single bit of advice that a
lawyer can offer on the topic.
Our main problem is that these laws are
state, not federal—thus, we are facing a patchwork. Adding to this hazy
picture, federal law still treats marijuana as a controlled substance. Yet
another layer of complexity is a series of state laws that allow medicinal uses
of marijuana.
So, let’s just take this a case or two
at a time and see if a pattern emerges. I’ll update with more as the year winds
down.
Let’s start with Barbuto v. Advantage Sales & Marketing (2017), a Massachusetts Supreme
Court case. Ms. Barbuto suffered from Crohn’s Disease and IBS. Her physician
prescribed marijuana. She put on 15 desperately needed pounds—she had lost weight
due to lack of appetite. She applied for a job and informed her interviewer
that she uses pot twice a week, usually in the evening, to keep up her
appetite. She got the job anyway.
However, when she tested positive for
pot, she was fired.
Under Massachusetts law (and I imagine,
others that are like it), use of medical marijuana is equated to treatment of a
disability.
Here, the court ruled that
firing Ms. Barbuto for marijuana use was protected by law. The act states, “Any person meeting the requirements under this law
shall not be penalized under Massachusetts law in any manner, or denied any
right or privilege, for such actions.”
In effect,
the employer should have “reasonably accommodated” her marijuana use.
The
employer said that it had a legitimate, non-discriminatory reason to fire her:
She broke federal drug law. The court rejected that rationale. The justices
reasoned that only Ms. Barbuto was at risk prosecution—not her employer.
To read
the case, see https://cases.justia.com/massachusetts/supreme-court/2017-sjc-12226.pdf?ts=1500300170
Thanks to AMR for the question! 😊
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