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June 28, 2016

Massachusetts Trial Court Dismisses Wrongful Employment Termination Claim Based on Medical Marijuana Use

Massachusetts Trial Court Dismisses Wrongful Employment  Termination Claim Based on Medical Marijuana Use

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A Suffolk Superior Court judge recently dismissed an employee’s claim that her employer improperly terminated her after she tested positive for marijuana, even though the employee had a valid medicinal prescription, holding that the employer had not discriminated against the employee based on a disability and that the employer’s action did not violate public policy.

In Barbuto v. Advantage Sales and Marketing, LLC, the plaintiff was terminated after she tested positive for marijuana, despite the fact that she had a valid medicinal marijuana prescription to treat her Crohn’s disease. Her lawsuit included five claims against her former employer based on a theory of wrongful termination: three counts alleging that her termination constituted unlawful disability discrimination; one count alleging that by terminating her for the positive test her employer violated the Act for the Humanitarian Medical Use of Marijuana (the “Act”) and its implementing regulations; and one count alleging that she was wrongfully terminated in violation of public policy. The Court dismissed all five of these employment-based claims.

Disability Discrimination Claims

The Plaintiff alleged three counts of disability discrimination, all of which turned on the question of whether a private employer is required to accommodate an employee’s legal use of medical marijuana under state law. The Court dismissed all three counts, ruling that a private employer has no such duty.

The Court primarily premised this critical portion of its ruling on two aspects of the Act itself. First, the Court noted that the Act does not contain an anti-discrimination provision. The Court interpreted the absence of such a provision as support for its finding that the Act does not require employers to accommodate even the medicinal use of marijuana. Second, and relatedly, the Court cited the explicit statement in the Act that “[n]othing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment.” Although the Court acknowledged that the Act is silent on an employee’s “off-site” use of medicinal marijuana, it that noted the use of marijuana—for any reason at any location—remains illegal under federal law, and the Act specifically warns that it neither “requires the violation of federal law” nor “purports to give immunity under federal law.”

Finally, it is also worth noting that in affirming the employer’s right to terminate employees for marijuana use, the Court also relied on several decisions from other jurisdictions that have legalized medicinal marijuana. Citing cases from both California and Colorado, the Court noted that those courts “held that the state disability discrimination statutes do not extend to marijuana use for medical purposes because such use remains illegal under federal law.”

Violation of the Medical Marijuana Act and Implementing Regulations

The Court also dismissed the plaintiff’s single claim under the Act itself on the grounds that the Act does not provide any private right of action under which a terminated employee is authorized to assert such a claim. Although the plaintiff argued that the Act states that “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,” the Court rejected the argument that this language authorized her lawsuit because the title of that section of the Act specifically references protections from “state prosecutions” and, in any event, still did not contain a private right of action against private employers.

The Court noted that its dismissal of this claim was consistent with the law and rulings in other states such as Maine and Michigan, where courts have held that the absence of a private right of action in their states’ medical marijuana laws prevented employees from pursing claims against their employers for allegedly violating medical marijuana laws.

Termination in Violation of Public Policy

The Court also dismissed the Plaintiff’s claim that she was wrongfully terminated in violation of public policy. Specifically, Plaintiff argued that the Act explicitly guaranteed her the right to use marijuana for medicinal purposes without being subjected to criminal prosecution or civil penalties. Although the Court acknowledged this language in the Act, it concluded that the provision did not “evince a clear public policy to forbid an employer from discharging an employee when that employee uses medical marijuana.” Once again, in reaching this conclusion the Court relied on decisions from other state courts (namely, courts in California, Colorado, and Washington) that interpreted those states’ medicinal marijuana laws as not stating a sufficient public policy to support a wrongful termination claim.

At this early stage in the legalization of medical marijuana, at least one Massachusetts court seems to be siding with employers with respect to their ability to restrict their employees’ use of this prescription drug. However, this decision does leave open the possibility that an employer could be liable for invasion of privacy if its drug testing policies are not reasonable and/or commensurate with job duties or industry standards. Thus, even though employers may terminate employees for state-sanctioned medical marijuana use, employers should ensure that their drug testing policies appropriately balance their interest in identifying drug use against their employees’ rights to privacy, particularly when that privacy involves the potential use of medicinal marijuana.


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