Cristina Barbuto, who had a prescription for medical marijuana, was terminated by her employer, Advantage Sales and Marketing (“ASM”), after testing positive for marijuana following a urine test. She alleged her termination constituted disability discrimination in violation of MGL c.151B, a violation of the Massachusetts Medical Marijuana Act, was against public policy and was an invasion of privacy. Superior Court Justice R. Tochka, dismissed all counts of the complaint, except for the invasion of privacy claim. The court held there is no requirement under Chapter 151B to accommodate an employee’s use of medical marijuana, which is illegal under federal law.
The state’s 2012 Medical Marijuana Act states in part, “nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment.” The court held there was no private right of action under the Medical Marijuana Act. The employee’s termination did not violate public policy, as the Act only guarantees that an employee would not be subject to criminal prosecution or civil penalties for using medical marijuana. The Act does not forbid an employer from discharging an employee who uses medical marijuana.
The only count not dismissed was the invasion of privacy claim, based on the theory that the drug testing was unreasonable and not commensurate with the employee’s job duties or the nature of the employer’s business.
This is an important decision. With the increased availability of medical marijuana, more employees are likely to seek an accommodation around use. Cases of first impression such as this one help employers understand their rights and obligations. The Plaintiff recently appealed this decision and NMP will continue to monitor it.
