Supreme Judicial Court Sides with Employee Using Medical Marijuana, Accepting Arguments by David Russcol and Others

In Barbuto v. Advantage Sales & Marketing, the SJC today affirmed that Massachusetts employees who use medical marijuana under state law to treat medical conditions are entitled to employment protections under state law governing disability discrimination. Zalkind Law’s David Russcol, along with Chetan Tiwari, submitted an amicus brief on behalf of the Massachusetts Employment Lawyers Association and a coalition of advocacy groups for individual rights, people with disabilities, and other affected groups. Matthew Fogelman and Adam Fine represented the plaintiff and made a strong case at oral argument. Based on the arguments presented, the SJC took a step no other state high court has taken, finding employment protections for medical marijuana users when those protections are not spelled out in the medical marijuana law itself. As a result of Barbuto, employees cannot be penalized or fired for their off-site use of medical marijuana unless an employer meets the high burden of showing that an accommodation would be an undue burden on the employer. A zero-tolerance policy for a positive drug test no longer gives an employer in Massachusetts an unqualified excuse for adverse actions.