Massachusetts sees first case over firing for medical marijuana use

Dive Brief:

A complaint filed accusing an employer of discrimination and invasion of privacy is centered on an employee who was fired because she uses medical marijuana and was let go for failing a company drug test, according to an article at Masslive.com.
Cristina Barbuto of Brewster, Mass., took a job with a marketing firm and told the company that she used medical marijuana to treat symptoms of Crohn's disease. Masslive reports that she worked for only one day for Advantage Sales and Marketing, promoting products in a supermarket, and then the company fired her for failing a required drug test.
An HR representative told Barbuto that the nationwide company follows federal, not state law on the issue.

Dive Insight:

While this is the first case of its kind in Massachusetts, it won't be the last -- either in that state or any state that allows medical marijuana use.

"Current medical marijuana law and regulations do not address the issue of employment discrimination," Nichole Snow, executive director of the Massachusetts Patient Advocacy Alliance, which represents medical marijuana patients, told Masslive. "Patients have a false sense of security that they're going to be protected by the medical cannabis law....No one realizes that there's no explicit protection in the law."

Tamsin Kaplan, an employment lawyer at Davis, Malm & D'Agostine in Boston, told Masslive she is often asked by employers she represents how to deal with medical marijuana use outside the workplace. "It's a huge issue," Kaplan said, adding that while the medical marijuana law does not address it, she looks at privacy and discrimination law and advises clients that they can require drug tests if there is an issue of safety – for example, for a forklift driver. But if there is no safety issue, she tells clients to judge an employee by their performance at work.

Expect more of this type of litigation ahead, as more and more states pass medical marijuana laws, or legalize marijuana entirely. Currently, 23 states and the District of Columbia allow medical marijuana use.