Can a worker be fired or denied a job for using medical marijuana?

At the same time as Massachusetts' highest court is considering the question, state lawmakers will also be debating whether to pass a new law to protect medical marijuana patients at work.

"Those protections are still not there, and our leaders need to recognize it and do something about it," said Nichole Snow, executive director of the Massachusetts Patient Advocacy Alliance, which advocates on behalf of medical marijuana patients. "We're still dealing with the stigma of using medical marijuana as a treatment plan for severe illness in the state of Massachusetts."

Massachusetts' existing medical marijuana law does not provide explicit anti-discrimination protections for a medical marijuana user at work.

A case pending before the Supreme Judicial Court asks the justices to consider whether Massachusetts' law requiring accommodations for someone with a disability extends to protecting to someone who has been certified as a medical marijuana patient. The plaintiff, Cristina Barbuto, was fired from her job promoting products in a supermarket after she failed a drug test, even though she told the company she had a recommendation from a doctor to use medical marijuana.

Whatever the outcome of the court case, the state Legislature will also have a chance to take up the issue. A bill introduced by Rep. Frank Smizik, D-Brookline, H.2385, would explicitly protect the rights of a medical marijuana patient to use the drug without facing discrimination in hiring, firing or terms of employment. The bill would also protect medical marijuana patients from discrimination in education, housing and child welfare and custody cases.

Additionally, the bill would expand an existing caregiver law, which lets someone grow marijuana plants at home to give a patient, to let a caregiver provide marijuana for up to five patients and let one patient have two caregivers. Currently, a medical marijuana patient is allowed a single caregiver, and a caregiver can only provide marijuana to one patient.

A similar bill was introduced last session but never passed. Peter Bernard, director of the Massachusetts Grower Advocacy Council, which represents marijuana growers, said he thinks the caregiver provision was the hold-up last session, and that has been changed to make it more palatable to legislators.

Bernard believes the employment discrimination changes are necessary. He cited one case where a veteran who served as a combat medic was taking medical marijuana and was denied a job because he failed a drug test.

"Even though he showed his veteran and medical marijuana cards, they didn't cut him a break. It's not illegal to do that," Bernard said.

Although Massachusetts voters legalized the use of recreational marijuana on the ballot in November, the protections in Smizik's bill would only apply to medical marijuana users. A business would still be allowed to deny someone a job for recreational marijuana use.

"It's really important for people to remember that medical marijuana is very different from recreational," Bernard said. "We need to make sure that legislatively those two worlds are kept separate."

Legal protections could also be enhanced if lawmakers pass a separate bill sponsored by Rep. Denise Provost, D-Somerville, H.113, including people with disabilities in non-discrimination protections. The bill is mostly aimed at replacing the word "handicapped" in state law with "people with disabilities" and updating state law to bring it in line with the federal Americans with Disabilities Act. But one provision of the bill would clarify that an employer cannot take adverse employment action against someone for using medical marijuana.

"It seems ridiculous to me that we can as a commonwealth authorize the medical use of marijuana and then if someone is indeed using marijuana medically have that result in adverse employment consequences," Provost said. "People can take antidepressants and other mood altering drugs...and presumably you would not be able to fire someone for doing so."

Provost also filed a separate bill relating to recreational marijuana, which would establish that employers cannot treat off-duty use of marijuana any differently than off-duty use of alcohol.

Tim Murphy, a labor and employment lawyer in Springfield who represents businesses, said drug testing is a "hot issue" for employers, who are no longer sure what they are allowed to do about marijuana, given its legality in the state. A lot of companies in Massachusetts drug test all new hires. "Very often, they are weeding out applicants just on that basis," Murphy said.

Murphy said he would be more open to language prohibiting employer discrimination against medical marijuana patients if it included an exception for "undue hardship" or public safety. He pointed out that the state's disability laws require a business to reasonably accommodate a disability unless it would create undue hardship, and he believes medical marijuana protections should include similar language.

"I just wish it wasn't quite as broad," Murphy said. "There may be some positions for which even medical marijuana use would impact job performance and the safety of employees or others." For example, Murphy said, it may not be safe for a social service worker who has to drive elderly or disabled clients to be under the influence of marijuana.