Just because weed may be legal in your state doesn’t mean you employer can’t still drug test you. But can you get in trouble for testing positive for THC?
It’s currently up for debate in the Massachusetts Supreme Court. In the case of Cristina Barbuto vs. Advantage Sales and Marketing, Barbuto is suing Advantage, her former employer, for what she calls discrimination based on her disability. As a Crohn’s disease patient, Barbuto has a doctor’s recommendation for medical marijuana. After just a day on the job, she failed a drug test for cannabis and was fired. Human resources told Barbuto that Advantage only follows federal law, and not Massachusetts state law, under which medical (as well as adult use) marijuana is legal.
In cases like Barbuto’s, patients are forced to choose between their medicine and their livelihoods, according to David Russcol, a Boston-based attorney. Russcol represents a coalition of organizations, including the American Civil Liberties Union, which filed a brief supporting Barbuto’s position.
Under Massachusetts law, employers can prohibit employees from using cannabis at work. However, Barbuto’s attorneys argue that employees can’t be punished for using medical marijuana outside work, as long as their use has no detrimental effects on job performance. According to her attorneys, under the state’s disability law, Barbuto should have been allowed to continue working even after she failed the drug test.
Advantage Sales and Marketing’s attorneys, on the other hand, argue that medical marijuana law only protects patients from criminal penalties, but doesn’t protect them against sanctions at work. Even if Barbuto didn’t use medical marijuana on the job, they say the company is still justified in firing her.
While several states with medical marijuana programs have protections written into law protecting patients from employment discrimination, Massachusetts is not one of those states.
For those of you wondering about your own cannabis use and what happens if you get drug tested, here are a few tips. In most cases, an employer can legally fire you if you’re using cannabis on the job, even if for medical reasons, Craig Brand, founding attorney at Ganja Law firm, tells Jane Street. “It’s as if you were drinking during your work shift,” he says. “But they can’t fire you for drinking on the weekends or drinking after work.”
However, if you medicate with cannabis before work and are experiencing psychoactive effects on the job, your employer may have cause to penalize you, he adds. “Each company is allowed to have a drug policy, but you can’t have one policy for alcohol and another for cannabis.” Yet, even if you test positive for THC, that doesn’t necessarily mean that you’re impaired, let alone under the influence. Depending on which drug test you use, THC can be detectable in your system for weeks or even months.
It’s reasonable for an employer to have a zero tolerance policy for anything that gives workers a buzz on the job, Brand says. Still, to fire someone for cannabis, as opposed to other medicines like Adderall, Zoloft, or Vicodin, calls into question how medical marijuana is still regarded differently than other, Scheduled medications.
