Gary Ross, a systems administrator from California, suffered from debilitating back pain from injuries he sustained while serving in the military. Based on his doctor’s recommendation, Ross treated his pain with marijuana, which is legal for medical and recreational use in California. But when he applied for a job as a systems administrator at RagingWire Telecommunication, he failed the required drug test, and the CEO fired him.
In 2001, Ross sued for discrimination based on his disability. But in 2008, the California court said his firing was legal: although the state medical marijuana law exempted Ross from criminal prosecution, it did not protect him from getting fired.
This is the case in most of the states that allow medical marijuana use. Forty-seven states (not including Kansas, Idaho, and South Dakota) allow some use of medical marijuana, from recreational use to low-THC CDB oil only. But just a small handful of states have also passed laws that protect people’s right to use the drug legally without fear of penalty at work, school, or elsewhere in their lives. Court decisions in many states weigh in favor of employers: there is no duty to accommodate marijuana use because it remains illegal under federal law.
Despite near unanimous support, only nine states protect those who medicate with marijuana from getting fired for doing so.
One of those states is Massachusetts. In that state, a woman named Cristina Barbuto told a company that offered her an entry-level position that she suffers from Crohn’s disease, a debilitating gastrointestinal condition, and that her doctor had given her written certification to use marijuana to help her maintain a healthy weight. Because of this, she said, she would fail the required drug test. When she did, the company, Advantage Sales and Marketing (ASM), fired her.
Barbuto sued for discrimination based on her disability, but unlike the court in California, the Massachusetts court said her firing was unlawful because she was qualified to do the job with a reasonable accommodation: a waiver of ASM’s drug policy.
Though medical marijuana is legal in both Massachusetts and California, Barbuto’s outcome was different than Ross’s outcome because of The Massachusetts Medical Marijuana Act, which protects a person diagnosed with a “debilitating medical condition” from arrest, prosecution, or penalty.
For Barbuto, the fact that marijuana is illegal federally did not relieve ASM of its duty to accommodate her; under Massachusetts state law, marijuana is treated like any other prescription drug: The law prohibits “on-site medical use of marijuana” but, even if Barbuto is violating federal law, ASM is not at risk for Barbuto’s off-duty use, as they aren’t aiding and abetting her possession simply by not firing her for her off-duty use.
In Connecticut, the Palliative Use of Marijuana Act (PUMA) plays a similar role by both allowing medical marijuana use for qualifying patients and prohibiting discrimination against them by schools, landlords, and employers. Arizona, Delaware, Illinois, Maine, Nevada, New York, and Rhode Island also offer varying degrees of protection to employees who medicate with marijuana.
The overwhelming majority of states believe patients should be able to medicate with marijuana. But legalizing marijuana use without protecting the rights of people who use it frustrates the spirit of the law and voters’ intent: it forces seriously ill people to choose between receiving the benefits of marijuana and their job. This conflict frustrates the growing market for marijuana. Only nine states seem to have found the balance between protecting a patient’s right to medicate with marijuana and an employer’s right to a productive workforce. The rest of the states should follow their example: following the law should not cost you your job.
Kabrina Krebel Chang is a clinical associate professor of business law and ethics at Boston University’s Questrom School of Business.