Cristina Barbuto, was hired into an entry level position by
Advantage Sales and Marketing in the late summer of 2014. Advantage Sales and
Marketing, LLC (ASM) claims to be one of North America's leading sales and
marketing agencies specializing in outsourced sales and merchandising
representatives to producers of food products and consumer goods.
After hire an ASM representative left a message for Barbuto
stating that she was required to take a mandatory drug test. Barbuto responded
to her supervisor that she would test positive for marijuana, explaining that
she suffers from Crohn's disease, a debilitating gastrointestinal condition.
She went on to explain that she was a qualifying medical Marijuana Cardholder
under Massachusetts law and that her physician had provided her with a written
certification that allowed her to use marijuana for medicinal purposes. Barbuto
assured her supervisor that she did not use marijuana daily and would not
consume it before work or at work. Barbuto went on to explain that as a result
of her Crohn's disease, and her irritable bowel syndrome, she has "little
or no appetite," and finds it difficult to maintain a healthy weight and
using marijuana two or three time a week after work had helped her gain fifteen
pounds and maintain a healthy weight.
In response, the supervisor told Barbuto that her medicinal use of
marijuana "should not be a problem," but that he would confirm this
with others at ASM. The supervisor later telephoned Barbuto and confirmed that
her lawful medical use of marijuana would not be an issue with the company.
On September 5, 2014, Barbuto was subject to a ASM’s mandatory
urine drug test. A few days latter she went to an ASM training program,
where she was given a uniform and assigned a supermarket location where she
would promote the products of ASM's customers. On September 12 Barbuto
completed her first day of work, but that evening ASM's Human Resources
representative informed Barbuto that she was terminated for testing positive
for marijuana. The HR representative told Barbuto that ASM did not care
if Barbuto used marijuana to treat her medical condition because "we
follow federal law, not state law."
Barbuto filed a verified charge of discrimination against ASM and
the HR representative with the Massachusetts Commission Against Discrimination,
and later filed suit in the Massachusetts Superior Court, alleging handicap
discrimination under Massachusetts law, a private right of action under the
Massachusetts Medical Marijuana Act and various other state law claims which
were dismissed, except for an invasion of privacy claim. Barbuto then appealed
directly to the Massachusetts Supreme Court.
On July 17 the Massachusetts Supreme Court ruled in favor of Barbuto, holding as follows: “In 2012, Massachusetts voters approved the
initiative petition entitled, An Act for the humanitarian medical use of
marijuana, St. 2012, c. 369 (medical marijuana act or act), whose stated
purpose is "that there should be no punishment under state law for
qualifying patients . . . for the medical use of marijuana."Id. at § 1.
The issue on appeal is whether a qualifying patient who has been terminated from
her employment because she tested positive for marijuana as a result of her
lawful medical use of marijuana has a civil remedy against her employer. We
conclude that the plaintiff may seek a remedy through claims of handicap
discrimination in violation of G. L. c. 151B, and therefore reverse the
dismissal of the plaintiff's discrimination claims. We also conclude that there
is no implied statutory private cause of action under the medical marijuana act
and that the plaintiff has failed to state a claim for wrongful termination in
violation of public policy, and therefore affirm the dismissal of those claims.”
Three Employer Safe Harbors for Marijuana Prohibitions left open
by the Massachusetts Supreme Court as presenting possible undue hardships for
an employer:
- “For instance, an employer might prove that the continued use of medical marijuana would impair the employee's performance of her work or pose an "unacceptably significant" safety risk to the public, the employee, or her fellow employees.”
- “Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer's contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety‐sensitive employee subject to drug testing under the department's drug testing regulations from using marijuana.”
- “In addition, we recognize that Federal government contractors and the recipients of Federal grants are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to make "a good faith effort . . . to maintain a drug-free workplace," and prohibits any employee from using a controlled substance in the workplace.”
Common Sense Counsel: Marijuana Proofing your Drug Free
Workplace Policy just got more complicated. But taking these steps now will
reduce the risk of a successful employee challenge:
• Update
job descriptions to include “safety sensitive position” and the “ability to
work in a constant state of alertness and safe manner” as an essential job
function;
• Update
the drug-free workplace policy to bring it into compliance with state laws and
to include a “pre-duty impairing effects” disclosure language as part of a
“safety rule”.
• Treat
all impairing effect medications equally to avoid a medical marijuana
discrimination/not compassionate/handicap discrimination claim;
• Engage
in an interactive discussion with MM Cardholders in the states with sticky
medical marijuana laws, like Massachusetts;
• Make
employees aware of Marijuana drug free contractual commitments, gate entry
requirements and restrictions that would adversely affect your company’s right
to do business; and
• Make
it all about safety in your policy, written documentation, training and
evaluation of your workplace concerns.
Tommy
Eden is a partner working out of the Constangy, Brooks, Smith & Prophete,
LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section
of Labor and Employment Law and drafts state compliant drug-free workplace
programs for employers in all 50 states. He can be contacted at
teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com with
link to order.
