The high court in Massachusetts, U.S. ruled this week that it would proceed with the case brought forward by Cristina Barbuto claiming disability discrimination from Advantage Sales and Marketing (ASM), due to her use of medical marijuana. Under the Massachusetts medical marijuana act a “qualifying patient” is defined as “a person who has been diagnosed by a licensed physician as having a debilitating medical condition”. Barbuto has been diagnosed with Crohn’s disease which is expressly included within the definition of “debilitating medical condition”. [1]

Barbuto was hired by ASM in the late summer of 2014 and after accepting the offer was told that she would be required to take a mandatory drug test. At that point Barbuto informed her supervisor at ASM that she would test positive for marijuana as she suffers from Crohn’s and had a prescription for marijuana. She advised the supervisor at that time that she did not use marijuana daily, and would not consume it before work or at work. The supervisor told Barbuto that her medicinal use of marijuana would not cause an issue with her staying employed with ASM. Barbuto submitted to a drug test on Sept. 5th, and after working her first day on Sept. 11th she was fired by HR representative Villaruz for testing positive for marijuana.

The Massachusetts Supreme Court agreed that Barbuto was a “handicapped person” under the state’s disability statute and it follows that her use of medical marijuana, as recommended by her doctor, was a “reasonable accommodation”, meaning that this was indeed a prima facie case of discrimination and this case will move to trial court.

Joseph McNelis, an attorney who works in PA with Fox’s Cannabis Law Practice Group, notes that it is important for employers to be aware that they should “engage in an interactive process with employees who are licensed medical marijuana users before taking any adverse employment actions. Furthermore, it is always critical to document such a process and, where applicable, to tie the employment decision to factors (e.g., safety and ability to complete the job) other than simply stating that the employee is a marijuana user”.[2]

“…it is always critical to document such a process and, where applicable, to tie the employment decision to factors (e.g., safety and ability to complete the job) other than simply stating that the employee is a marijuana user”

In other words, make sure that your drug and alcohol policy is very clear as to not only how it specifies the actions to be taken upon positive drug test, but how the different circumstances that led to the positive drug test will be addressed in accordance with the Canadian law.

It is now more important than ever for Canadian employers watch how these cases unfold as it will surely affect Canadian viewpoints on the matter, especially when considering the Canadian government’s promise to change marijuana laws in 2018. Employers need to start thinking now about how they will deal with the use of medicinal marijuana within the workplace and how it relates to the Canadian Charter of Rights and Freedoms and the Human Rights Act which guarantees persons with disabilities have the right to “equal protection and equal benefit of the law without discrimination based on…mental or physical disability”.[3]