Can workers be fired for smoking medical cannabis when they’re off the clock?
That’s the question currently before the state’s highest court the legislature this session.
Medical marijuana is legal in 28 states and in Washington, but because cannabis is still illegal under federal law, patients who use it aren’t necessarily afforded the same protections as patients who use more conventional medications like opioids. Workers can be fired from their jobs for failing a drug test, even if they can provide proof that they are a registered patient.
It’s a double standard Dr. Jordan Tishler, who runs a pot-friendly practice, would like to see changed.
“I think absolutely this medicine should be treated with same regard as other medicines and as far as employees go; they should get the same protections as they do with other medications,” he said. “There’s no reason to treat it any differently than percocet, benzos, or frankly any non-dependency forming psychoactive medication.”
Marijuana is different from alcohol in that it can be detected in the body for weeks after use. And a positive test doesn’t indicate current intoxication, Tishler said.
For people like Cristina Barbuto, using medicinal cannabis can mean having to choose between making a living and living in pain.
Barbuto, who has Crohn’s disease, was fired from a marketing job with Advantage Sales and Marketing in 2015 when she failed a drug test — a test she had already told her boss would test positive for marijuana. Though her boss said it wouldn’t be an issue given her medical status, Barbuto was fired after just one day on the job.
"Ms. Barbuto explained to ASM that she did not use marijuana daily and would never consume it before work or at work," her court appeal states.
But she was fired anyway. The reason? She said the business decided, “We follow federal law, not state law."
Barbuto has been fighting her firing through the courts ever since. Now it’s up to the Supreme Judicial Court to decide whether state law requiring accommodations for persons with disabilities extends to medical marijuana.
In a similar case in Colorado, Coats v. Dish Network, the state’s highest court ruled companies can discriminate against employees who use weed, medically or recreationally.
Some lawmakers are hoping to give medical marijuana patients more protections.
“I do not believe any employee should fear losing their job simply because they manage a medical condition with marijuana,” said state Rep. Frank Smizik, D.-Brookline.
Smizik is sponsoring a bill that would prohibit discrimination in hiring and firing someone who uses medical marijuana. The bill would also afford patients protections against discrimination in education, housing, and child welfare and custody cases.
A handful of states — Arizona, Connecticut, Delaware, Maine, and New York — have already passed laws that restrict employers from firing medical marijuana users unless they are shown to be impaired on the job. If you have a prescription for medical marijuana in these states, your employer cannot fire you for off-duty use that does not affect your work.
Smizik’s bill has been referred to the Joint Committee on Marijuana.