Mass. high court hears case of woman fired over medical marijuana use

Cristina Barbuto.Julia Cumes for the Boston Globe/file/Globe Freelance

Lawyers for a woman who was fired over her use of medical marijuana brought her case before the state’s highest court on Thursday, arguing that the employer who terminated her had discriminated against her based on her use of a legal treatment.

Cristina Barbuto of Brewster failed a drug test in 2014 after working for a single day at Advantage Sales and Marketing. She was let go, she claims, despite having disclosed that she uses marijuana, with her doctor’s legal permission, to combat symptoms of a digestive disorder.

“She should not be faced with the cruel choice of treating her disability or earning a livelihood, the unconscionable choice between her job and her health,” Matthew Fogelman, one of Barbuto’s attorneys, told members of the Supreme Judicial Court during oral arguments Thursday.

Lawyers for Advantage argue that the company is within its rights to maintain its program of drug testing, especially since marijuana remains prohibited under federal law. Barbuto was fired before voters in Massachusetts approved a measure to legalize recreational marijuana last year.

Michael Kent Clarkson, attorney for the company, told the justices that testing methods would make it difficult to determine whether an employee was using marijuana off-site or on the job.

“You put an employer in an impossible bind,” he said.

Members of the SJC asked questions on subjects including how workplace monitoring for marijuana should differ from the treatment of legal opioids. They also asked how decisions in other states and federal law affect the attorneys’ legal reasoning.

The court has not said when it will rule on the case.

Barbuto had originally challenged her termination before the Massachusetts Commission Against Discrimination, but she withdrew that case when she filed a 2015 lawsuit in Suffolk Superior Court, where a judge eventually dismissed most of her claims. She appealed.

Other states have come to divergent conclusions about whether employers can fire workers who are using authorized medical marijuana.