This just in via Bloomberg:
In the past two years workers who lost jobs because of medical marijuana use won cases in Connecticut, Rhode Island, Arizona, and Delaware, with judges finding employers violated medical marijuana statutes. At the crux of the issue are the drug tests themselves, which aren’t sophisticated enough to determine whether someone got high that morning or last weekend. Most often, employers want to punish drug use on the job. Do they risk keeping someone at work who tests positive and may endanger themselves or others? Or do they fire someone who hasn’t gotten high in days and expose themselves to a lawsuit?
The earliest lawsuits filed on behalf of fired weed smokers started popping up in places like Colorado and California—early adopters of sanctioned pot use—around the late aughts. These cases ran up against federal law, which lists cannabis as a Schedule 1 substance, an illicit drug with “no accepted medical use and high potential for abuse.” In 2015 the Colorado Supreme Court seemed to settle the question of how the courts would handle conflicting state and federal laws when it ruled that Dish Network was within its rights to fire an employee who was treating spinal cord pain related to paraplegia with a weed prescription. The court found he was engaging in “unlawful activity,” a violation of company policy.
A recent Massachusetts case showed one potential way around this precedent. Cristina Barbuto was offered a job with Advantage Sales and Marketing in the Boston area. Before she started, the company asked her to take a drug test. Barbuto, who treats her Crohn’s disease with medical marijuana, told the company the test would come back positive. When it did, the company fired her. Under Massachusetts state law, a company has to seek a “reasonable accommodation” for an employee’s medical condition. In this case, the company didn’t engage in a dialogue with Barbuto to see how it could meet her needs, Barbuto’s lawyers argued. In 2017 the Massachusetts Supreme Court ruled in favor of her right to sue, opening the door for other medical pot users to bring civil claims against their employers. (Advantage later settled.) “It was a groundbreaking case nationally,” says Matthew Fogelman, a Newton-based employment lawyer. Lawyers in New Jersey later won a similar case with the same argument, and the new, more comprehensive legislation soon followed.
Full story in Bloomberg: https://www.bloomberg.com/news/articles/2019-07-23/it-s-getting-harder-to-fire-people-for-using-pot