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christina barbuto massachusetts medical marijuana handicap discrimination supreme judicial court
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Christina Barbuto, Crohn’s patient:
“I felt discriminated against. I felt like this is wrong, this can’t be”
[CBS Boston]

The top court in Massachusetts on Monday ruled that a woman fired for testing positive for medical marijuana legally authorized under state law could sue her former employer for handicap discrimination.

The Massachusetts Supreme Judicial Court (SJC) rejected the argument of Christina Barbuto’s former employer that she couldn’t sue for handicap discrimination because possessing marijuana remains illegal under federal law, reports Reuters.

Barbuto’s lawyers said the ruling is a major win for employees in Massachusetts. It sets a precedent, they said, which could impact other states with legal medical marijuana.

Advantage Sales and Marketing fired Barbuto after her first day of work in 2014 because she tested positive for cannabis. Her medicinal use of marijuana had been authorized by her doctor to treat low appetite, a side effect of her Crohn’s disease.

“I felt discriminated against,” Barbuto told WBZ. “I felt like, this is wrong, this can’t be.”

After she lost her job, Barbuto filed a complaint in Suffolk County Superior Court accusing the company of discrimination. The Massachusetts Medical Marijuana Act, approved by voters in 2012, states that “qualifying patients” should not be punished under state law for medicinal use of cannabis.

handicap discrimination massachusetts supreme judicial court
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The Massachusetts Supreme Judicial Court ruled 6-0 in favor of Barbuto
[Ars Technica]

Barbuto said she did not use cannabis daily, nor did she consume it before or during work, according to court documents, reports Michele Williams at MassLive.

If a doctor concludes medical marijuana is the most effective treatment for an employee’s debilitating condition, “an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation,” wrote Chief Justice Ralph Gants.

“The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation” ~ Chief Justice Ralph Gants

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Chief Justice of the Massachusetts Supreme Judicial Court Ralph D. Gants:
“The fact that an employee’s possession of medical marijuana is in violation federal law does not make it per se unreasonable as an accommodation”
[Nancy Lane / Boston Herald]

“One generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it,” the Massachusetts Supreme Judicial Court wrote in a ruling released Monday. “By the defendants’ logic, a company that barred the use of insulin by its employees in accordance with a company policy would not be discriminating against diabetics because of their handicap, but would simply be implementing a company policy prohibiting the use of a medication.”

Citing the Massachusetts Medical Marijuana Act, the court ruled that patients shall not be denied “any right or privilege” due to marijuana use.

The unanimous ruling by the six-judge SJC panel noted that only the employee — not the company — could have been subject to prosecution under federal law for her marijuana use.

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Attorney Matthew Fogelman:
“This is the highest court in Massachusetts recognizing that the use of medically prescribed marijuana is just as lawful as the use of any prescribed medication”
[Fogelman & Fogelman]

Barbuto’s lawyer, Matthew Fogelman, called the SJC ruling a “groundbreaking decision.”

“Very importantly, Ms. Barbuto’s use of medical marijuana does not affect her ability to perform her job,” Fogelman said.

“The more important point is the court has recognized that the use of medically prescribe marijuana by a qualified patient is just as lawful as the use of any other prescribed medication,” said Matt Fogelman, an attorney with Fogelman & Fogelman. “Before this there was no protection in Massachusetts for employers firing them for a drug test even if they were using it for medicinal purposes.”

“This is the highest court in Massachusetts recognizing that the use of medically prescribed marijuana is just as lawful as the use of any prescribed medication.” ~ Attorney Matthew Fogelman

The SJC ruling reversed an earlier decision that had dismissed Barbuto’s 2015 handicap discrimination suit against Advanced Marketing. It upheld the dismissal of her other claims.

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Attorney Michael Clarkson, Advantage Marketing:
“Confident that our client acted in accordance with the law”
[Ogletree Deakins]

The company is considering its options, according to its lawyer, Michael Clarkson. Company lawyers are “confident that our client acted in accordance with the law,” Clarkson claimed.

Barbuto’s lawsuit said she had been authorized by her physician to use medicinal cannabis to treat her Crohn’s disease, which coupled with irritable bowel syndrome (IBS) left her with little appetite.

After she started using cannabis, Barbuto said she was able to maintain a healthy weight.

Massachusetts voters approved the medical use of cannabis in 2012. They joined the majority of U.S. states that allow marijuana’s medical use. State voters in November went farther, legalizing recreational use of cannabis as well.

While both medical and recreational marijuana use is now allowed, workers still cannot use cannabis before or during work. Workers can still be drug tested and fired for failing a drug test if it is not part of an approved treatment plan for a medical condition.

 

 

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