Employment Termination May Go Up in Smoke

By Gregory J. Aceto of Aceto, Bonner & Cole, PC. Posted in Administration of Estates on Tuesday, November 8, 2016.

Under the Massachusetts Medical Marijuana Act, it is lawful to use marijuana in Massachusetts for medicinal purposes. At the same time, the Massachusetts Medical Marijuana Act states that "nothing in this law requires any accommodation of any on-site medical use of marijuana in places of employment." Therefore, it may be legal for employers to fire workers for their use of marijuana.

For the most part, employers have prevailed in cases involving allegations of wrongful termination based on the employee's use of marijuana. The reason being that the use of marijuana, even for medicinal purposes, is still illegal under the federal law. Courts in other jurisdictions have previously determined that private employers have no obligation to employ an individual who uses marijuana because they are essentially committing a crime under the federal law.

Recently, Christina Barbuto filed the first medical marijuana lawsuit of its kind in Massachusetts alleging wrongful termination based on her use of medical-grade marijuana which she had legally obtained. California-based Advantage Sales & Marketing fired Ms. Barbuto after she failed the company's mandatory drug test, despite Ms. Barbuto informing the company that she was using medical-grade marijuana to treat Crohn's disease. Ms. Barbuto's attorneys are in large part relying on the specific language of the Massachusetts Medical Marijuana Act, which states, "[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner or denied any right to privilege, for such action." If the court determines that an individual's right to be employed is considered a "right" or "privilege" under the law, then Ms. Barbuto may prevail in this case.

Ms. Barbuto and other individuals in Massachusetts who have been terminated from their employment as a result of their marijuana use may have a stronger argument to base their claims on after the results of the Presidential Election on November 8, 2016. Question 4, also known as the Massachusetts Marijuana Legalization Initiative, involves a proposed Massachusetts state statute that would legalize marijuana but regulate it in a way similar to the way alcoholic beverages are regulated. If this proposal passes, all marijuana use would be legal in Massachusetts. Thus, individuals, like Ms. Barbuto, may have a stronger argument in challenging their respective employment termination.

What would this mean for Massachusetts employers if marijuana is legalized in the Commonwealth? It may mean that employers could have a harder time firing their employees based solely on marijuana use. Marijuana use, however, is still illegal under federal law, which gives employers legal grounds to support employment termination. The future of this issue remains unclear at this time.