Workplace Drug Policy

Cannabis Shift Impacting Employers

Decisions on marijuana policy are shifting, leaving employers concerned about maintaining safe and drug-free workplaces.
By: | July 28, 2017 • 4 min read

Marijuana policy made headlines twice in one week, on matters that may be potential game changers for employers.

On July 17, Massachusetts’ Supreme Judicial Court ruled in favor of a woman fired for using medical marijuana in Barbuto vs. Advantage Sales and Marketing. She will be able to sue her former employer for discrimination. One week later, the head of Maine’s Department of Labor reported to a legislative panel that state employers would be hamstrung by a prohibition on drug testing once the new recreational marijuana bill goes into effect.

Massachusetts: A Closer Look

In 2013, medical marijuana became legal to use in Massachusetts. In the summer of 2014, Cristina Barbuto was offered an entry-level position at Advantage Sales and Marketing so long as she passed a mandatory drug test. Barbuto informed Advantage that her test would come back positive because she required medical marijuana to help with her Crohn’s disease, a debilitating gastrointestinal condition.

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The supervisor at Advantage told Barbuto that her medical marijuana use would not be a problem. Barbuto went through training, received her uniform and was assigned a location for her employment. After one day of work, Advantage’s human resources representative informed Barbuto she was terminated after testing positive for marijuana. The rep said the company followed federal law, which prohibits the substance in all forms, and not the state law.

Barbuto filed a complaint of discrimination against Advantage. The company argued that Barbuto could not allege she qualified as disabled, because her only accommodation — use of medical marijuana — was a federal crime. Additionally, her termination directly stemmed from failure to pass a drug test and not from her supposed handicap.

The court ruled that under Massachusetts law, use and possession of medical marijuana was “as lawful as the use and possession of any other prescribed medication,” and that the federal illegality of the drug did not make it unreasonable as an accommodation.

The court also took issue the company’s knee-jerk decision to terminate Barbuto.

“Even if the accommodation of the use of medical marijuana were facially unreasonable, which it is not, the employer here still owed the plaintiff an obligation under [Massachusetts law] before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use that was not prohibited by the employer’s drug policy,” the court said.

Failure to explore a reasonable accommodation alone is sufficient to support a claim of discrimination, it said.

The employer will have to prove Barbuto’s use of the medication caused undue hardship to the business in order to justify her termination.

Meanwhile, in Maine …

As was the case in many states during last year’s political race, legal use of recreational marijuana was up for debate in Maine. In November, the state passed the bill. Now, Maine is working to set up the parameters on the recreational drug, diving into how employers will be affected.

On July 24, Julie Rabinowitz, the state’s Department of Labor director of policy, operations and communications, addressed the state legislative committee formed to create the regulatory framework surrounding recreational use of marijuana. She argued employers were getting the short end of the stick.

The court ruled that under Massachusetts law, use and possession of medical marijuana was “as lawful as the use and possession of any other prescribed medication,” and that the federal illegality of the drug did not make it unreasonable as an accommodation.

Businesses won’t be able to reject applicants for testing positive for marijuana because the applicant might use it for medicinal purposes, she explained. Likewise, employers won’t be able to fire an employee for a positive drug test. Instead, the employer will have to prove the employee was impaired on the job.

Rabinowitz went on to discuss how employers in other states with legalized marijuana have more rights, citing Massachusetts, California and Colorado as examples. She urged Maine’s legislative committee to change the law to give employers more rights when it comes to the hiring and discharge of employees who test positive for marijuana.

The final decision was deferred to the legislature’s labor committee and will be a hot topic until the law goes into effect in February 2018.

What This Could Mean Long-Term

The tides are turning on how cannabis is perceived by the general population. Massachusetts and Maine aren’t the only states updating marijuana laws; 29 states and the District of Columbia have legalized the use of medical marijuana. Of those, eight states have legalized the use of recreational marijuana — four in the last year alone.

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Other states have enacted decriminalization laws for possession of the substance, which treats an offense like a minor traffic violation — no threat of jail time and a reasonable fine.

In workers’ compensation, numerous cases debating whether an employer should accommodate for medical marijuana have been brought to the fore. The most significant sticking point has been the discrepancy between federal and state laws. Prior to Barbuto, courts tended to defer to the supremacy of federal law. Barbuto, however, establishes a precedent for courts to take a different approach.

Employers wishing to review their own state’s medical and recreational laws can do so here.

Autumn Heisler is a staff writer at Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Risk Management

The Profession

As risk manager for a cloud computing and software company, Laurie LeLack knows that the interconnected economy and cyber security remain top risks.
By: | December 14, 2017 • 4 min read

R&I: What was your first job?

One of my first jobs was actually at a local insurance agency when I was a high school student, before I had any idea I was going to get into insurance. After college, I was a claims analyst at Sunbeam.

R&I: How did you come to work in risk management?

I fell into it after college, where I studied international business. I had a stack of resumes, and Sunbeam came to Florida from Rhode Island, so I applied. I interviewed with the director of risk management and just stuck with it and worked my way up.

R&I: What is the risk management community doing right?

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Getting a holistic view of risk. Risk managers are understanding how to get all stakeholders together, so we understand how each risk is aligned. In my view, that’s the only way to properly protect and serve our organizations.

R&I: What could the risk management community do better?

We’ve come a long way, but we still have to continue breaking down silos at organizations. You also have to make sure you really understand your business model and your story so you can communicate that effectively to your broker or carrier. Without full understanding of your business, you can’t assess your exposures.

R&I: What was the best location and year for the RIMS conference and why?

Being on the East Coast, I like Philadelphia.

Laurie LeLack, Senior Director, Corporate Risk and Americas Real Estate, Citrix Systems Inc.

R&I: What’s been the biggest change in the risk management and insurance industry since you’ve been in it?

Organizations understanding their cyber risk exposures and how this line of insurance can best protect them. Five to ten years ago, people shrugged it off as something just for technologies companies. But you can really see the trend ticking up as a must-have. It was always something that was needed, but people came to their own defining moments as we got more involved in electronic content and social media globally. Cyber risk is inherent in the way we do business today.

R&I: What emerging commercial risk most concerns you?

The advent of security and contractual obligations. These are concerns as we all play a part in this big web of a global economy. There’s that downstream effect — who’s going to be best insulated at the end of the day should something transpire, and did we set the right expectations?

R&I: Is the contingent commission controversy overblown?

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I think so. At the end of the day, it’s all about the transparency you’re getting from the people you work with. I think some best practices in transparency came out of the situation, but we were working on a fee basis, so it wasn’t as much of an issue for us as it may have been for other companies.

R&I: Are you optimistic about the U.S. economy or pessimistic and why?

I’m cautiously optimistic. We seem to be stable in terms of growth, and I’m hoping that the efficiencies and the economies of scale we achieve through technology will benefit us. But I’m also worried about the impact that could have on the number of jobs globally.

R&I: Who is your mentor and why?

Robert O’Connor, my former director when I was first on-boarded at Sunbeam, gave me so many valuable tidbits. I’ll call him to this day if I have an idea I want to bounce off him. He’s a good source of comfort and guidance.

R&I: Of what accomplishment are you most proud?

I have two very empathetic, healthy and happy boys. Eleven and soon-to-be 14.

On the professional side, there were a lot of moments during my career at Citrix where we were running a very lean organization, so I had the opportunity to get involved in many different projects that I probably wouldn’t have had in other larger organizations.

R&I: What is your favorite book or movie?

My favorite movie is Raiders of the Lost Ark.

R&I: What’s the best restaurant you’ve ever eaten at?

A place in Santa Barbara called Bouchon.

R&I: What is the most unusual/interesting place you have ever visited?

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Caverns in Gatlinburg, Tennessee. They were interesting. It was cool to see these stalagmites and stalactites that have been growing for millions of years, and then just above ground there are homes from the 1950s.

R&I: What is the riskiest activity in which you’ve ever engaged?

Riding on the back of my husband’s Harley.

R&I: What about this work do you find the most fulfilling or rewarding?

I like educating people and helping them find their ‘aha’ moment when you highlight areas of risk they may not have thought about. It allows people to broaden their horizons a little bit when we talk about risk and try to explore it from a different angle. I try not to be the person who always says “No” because it’s too risky, but find solutions that everyone is comfortable with given a risk profile.

R&I: What do your friends and family think you do?

I tell my kids I protect people and property and sometimes the things you can’t feel or touch.




Katie Dwyer is an associate editor at Risk & Insurance®. She can be reached at [email protected]