Ignoring the Supremacy Clause of the United States Constitution, and disregarding the federal Controlled Substances Act, the Supreme Judicial Court of Massachusetts recently declared it law that an employee using marijuana for medical purposes in Massachusetts can pursue a handicap discrimination claim against an employer who fired the employee when she tested positive for marijuana. Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017). Massachusetts is the first state supreme court to take this step. Hopefully, it will be the last.
Christina Barbuto has Crohn’s disease, resulting in debilitating gastrointestinal distress. It gets so bad that she has difficulty eating, leading her to be underweight. A physician certified that she should be allowed to use marijuana to treat this condition. Barbuto typically consumes marijuana in the evening, after work, two to three times a week. Since she began using marijuana, she has been able to eat food, her bowels have become less irritable, and she has gained healthy weight.
Barbuto applied for a job with Advantage Sales and Marketing to promote the products of ASM’s customers at supermarkets. She was told she would have to take a mandatory drug test. She notified ASM that she would test positive for marijuana, and for some odd reason, was told this would not present a problem. She did test positive, and she was fired. The human resources representative explained, “We follow federal law, not state law.”
So Barbuto sued ASM, claiming it violated Massachusetts law, which prohibits discriminating against qualified individuals with handicaps when reasonable accommodations can be made. ASM sought to have the case thrown out of court, arguing that she was not a “qualified handicapped person” because the only accommodation she sought – the continued use of marijuana – is a federal crime.
The Massachusetts supreme court was not persuaded by this argument, since the only person at risk for prosecution of a federal crime was Barbuto. More importantly, the court felt, “To declare an accommodation out of respect for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters . . . that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”
This sentiment seems to have overlooked the inconvenient fact that the Commonwealth of Massachusetts ratified the United States Constitution in 1788, thereby agreeing to the Supremacy Clause, which states, “The Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Back in 2010, when the Supreme of Oregon was confronted with the same basic issue, it acknowledged that, since federal law made it illegal to use marijuana, state law could not override that federal law and authorize its citizens to consume marijuana. Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010).
It must be acknowledged that – for whatever reason – ASM waived its right to argue that the federal Controlled Substances Act preempted the Massachusetts marijuana law. Still, we struggle to see how the Massachusetts court could ignore the Supremacy Clause when it concluded that the citizens of Massachusetts can create a state law that gives someone a “right or privilege” as a handicapped person to compel employers to accommodate a handicap by tolerating the commission of a federal crime. It would not be surprising to see this decision get reversed, assuming the United States Supreme Court agrees to hear the case.
Moral of the story: if you get sued for firing a person who tests positive for marijuana in a state that authorizes its possession and consumption, make sure you raise preemption as an affirmative defense.
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