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Even though Marijuana is legal and/or decriminalized in 29 states and the District of Columbia for medical or recreational use it is still listed as a controlled substance and has no medical use under existing Federal Law.  Given this more and more cases are coming up with conflicting results from different jurisdictions.  A recent Massachusetts Supreme Court decision on Barbuto v Advantage Sales & Marketing LLC (ASM) is another example of the evolving law in this area.

The plaintiff, Christina Barbuto, had a legal prescription for use of medical marijuana to treat her Crohn’s disease.  Barbuto had recently been employed by ASM as an entry level sales and marketing employee.  Barbuto was told by her ASM supervisor that she was required to take a drug test.  Barbuto explained that she had Crohn’s disease and had a prescription to use marijuana under Massachusetts law.  Barbuto also stated that she would not use marijuana before or during work.  The ASM supervisor told her that lawful medical marijuana use would not be a problem with ASM.  Barbuto then submitted a urine sample for a drug test.

After Barbuto’s 1st day at work, ASM’s Human Resources Representative stated that Barbuto was terminated for testing positive for marijuana in her drug test.

Barbuto filed a handicap discrimination claim against ASM.  The Superior Court judge dismissed the discrimination claim against ASM because the use of marijuana under Federal law violates the Controlled Substances Act and is a crime.  Barbuto appealed.

The Massachusetts Supreme Court reversed the Superior Court Judge’s ruling stating the Barbuto’s legal prescription marijuana use is protected under Massachusetts law and remanded the case back to the Superior Court.

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