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

Wawa’s Director of Risk Management knows that harnessing data and analytics will be key to surviving the rapid pace of change that heralds new risk exposures.
By: | July 27, 2017 • 5 min read

R&I: What was your first job?

My first job was at the age of 15 as a cashier at a bakery. My first professional job was at Amtrak in the finance department. I worked there while I was in college.

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

A position opened up in risk management at Wawa and I saw it as an opportunity to broaden my skills and have the ability to work across many departments at Wawa to better learn about the business.

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

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The advancements in analytics are a success for the industry and offer opportunities for the future. I also find value in the industry focus on emerging and specialty risks. There is more alignment with experts in different industries related to emerging and specialty risks to provide support and services to the insurance industry. As a result, the insurance industry can now look at risk mitigation more holistically and not just related to traditional risk transfer.

R&I: What could the risk management community be doing a better job of?

Developing the talent to grow with the industry in specialization and analytics, but to also carry on the personal connections and relationship building that is a large part of this industry.

Nancy Wilson, director, quality assurance, risk management and safety, Wawa Inc.

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

I have had successes at all of the RIMS events I have attended. It is a great opportunity to spend time with our broker, carriers and other colleagues.

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

I think the biggest challenge facing most companies today is related to brand or reputational risk. With the ever-changing landscape of technology, globalization and social media, the risk exposure to an organization’s brand or reputation continues to grow.

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

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The changing consumer demands and new entrants into an industry are concerning. This is not necessarily something new but the frequency and speed to which it happens today does seem to be different. I think that is only going to continue. Companies need to be prepared to evolve with the times, and for me that means new risk exposures that we need to be prepared to mitigate.

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

I try to be optimistic about most things. I think the economy ebbs and flows for many reasons and it is important to always keep an eye out for signs of change.

R&I: What have you accomplished that you are proudest of?

I am fortunate to have opportunities professionally that make me proud, but I have to answer this one personally. I have two children ages 12 and 9 and I am so proud of the people that they are today. They both are hardworking, fun and kind. Nothing gives me a better feeling than seeing them be successful. I look forward to more of that.

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

This is really hard as there are too many favorites. I do prefer books to movies, especially if there is a movie based on a book. I find the movie is never as good. I have multiple books going at once and usually bounce back and forth between fiction and non-fiction.

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

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I have eaten at a lot of different restaurants in many major cities but I would have to pick Horn O’ Plenty in Bedford, PA. It is a farm to table restaurant in the middle of the state. The food is always fresh and tastes amazing and they make me feel like I am at home when I am there. My family and I eat there often during our trips out that way.

R&I: What is your favorite drink?

I do love a good cup of coffee (working at Wawa helps that). I also enjoy a good glass of wine (red preferably) on occasion.

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

Vacations aside, I do get an opportunity to travel for work and visit our food suppliers. The opportunities I have had to visit back to the farm level have been a very interesting learning experience. If it wasn’t for my role, I would have never been able to experience that.

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

My husband, kids and I recently did a boot-camp-type obstacle course up in the trees 24 feet in the air. Although I had a harness and helmet on, I really put my fear of heights to the test. At the end of the two hours, I did get the hang of it but am not sure I would do it again.

R&I: If the world has a modern hero, who is it and why?

The first people that come to mind are those who are serving our country and willing to sacrifice their own lives for our freedom.

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

Every day is different and I have the opportunity to be involved in a lot of different work across the company.

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

My husband and children have a pretty good sense of what I do, but the rest of my family has no idea. They just know I work for Wawa and sometimes travel.




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