advantage sales & mktg

This article is Part One of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series

In Cristina Barbuto vs. Advantage Sales and Marketing, LLC, & another, SJC-12226 (July 17, 2017), slip opinion[1], the Supreme Judicial Court of the Commonwealth of Massachusetts was confronted with Plaintiff Cristina Barbuto’s (hereinafter, “Plaintiff” or “Ms. Barbuto”) direct appeal of the Superior Court’s Decision to grant, in part, Defendant Advantage Sales and Marketing, LLC’s (hereinafter, “ASM”) and Defendant Joanna Meredith Villaruz’s (hereinafter, “Ms. Villaruz”) (collectively, “Defendants”), Motion to Dismiss her Complaint.  The Complaint flowed from Plaintiff’s termination from her employment with ASM as a result of her testing positive for marijuana in connection with a mandatory drug test.  See id. at 4.

Ms. Barbuto was offered and accepted a job from ASM in the late summer of 2014.  See id. at 3.  After she accepted the position, an ASM representative communicated to Ms. Barbuto that she would be required to take a mandatory drug test.  See id.  Ms. Barbuto advised the ASM employee that she would test positive for marijuana.  See id.  She further explained that she suffered from Crohn’s disease and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes, which rendered her a qualifying medical marijuana patient under Massachusetts law.  See id.  Ms. Barbuto advised the ASM employee that she did not use marijuana daily and agreed that she would not consume it before work or at work. See Barbuto, supra, slip opinion at 3.

Thereafter, the ASM representative advised her that such use would not preclude her employment at ASM, alerted her that this would be confirmed with ASM and later provided her with confirmation that her lawful medical use of marijuana would not be an issue with the company.  See id. at 4

On September 5, 2014, Ms. Barbuto submitted a urine sample for the mandatory drug test. On September 11th, she participated in an ASM training program wherein she received a uniform and her job assignment, and she later completed her first day of work—without use of marijuana before or during her shift.  See id.  Later that evening, Ms. Villaruz, ASM’s Human Resources representative, informed Ms. Barbuto that she was being terminated as a result of testing positive for marijuana and also advised Plaintiff that ASM did not care if Ms. Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.”  See id.

After her termination, Plaintiff filed a verified charge of discrimination against Defendants with the Massachusetts Commission Against Discrimination (“MCAD”), which was later withdrawn prior to her filing of a Complaint in Superior Court.  See id. at 4-5.  The Complaint alleged six (6) distinct Counts: (1) handicap discrimination, in violation of G. L. c. 151B, § 4 (16); (2) interference with her
Continue Reading Ogletree, Deakins & Nash Attorneys Get Smoked by Supreme Judicial Court of MA: Employer’s Termination of Employee For Failing Drug Test for Use of Medical Marijuana States a Claim for Workplace Discrimination