BOSTON (CBS) – Cristina Barbuto started a great new job last year.
It lasted one day.
“I felt discriminated against,” Barbuto told WBZ. “I felt like, this is wrong, this can’t be.”
As a condition of her employment, Advantage Sales and Marketing gave Barbuto a drug test.
“I wanted to be honest, so I was up front and honest with my supervisor and said, ‘You know, I am going to fail this part of the drug test, so I just wanted to make you aware,’” she explained.
Barbuto has Crohn’s disease. When she’s suffering from a flare up, the pain can be excruciating. From time to time, she relies on her prescription for medical marijuana.
Barbuto was barely home from work after her first day on the job before the phone rang. Her drug test had come back positive for marijuana, and she was fired.
She pleaded with the Advantage Sales and Marketing representative on the line.
“I don’t use marijuana at work or before work or anything like that,” Barbuto recalled saying. “It’s on my own time. And isn’t that a good enough reason? And she said, ‘No, because we follow federal law.’”
Feeling like she’d been cheated out of her rights, Barbuto contacted Newton attorney Matthew Fogelman.
“Very importantly, Ms. Barbuto’s use of medical marijuana does not affect her ability to perform her job,” Fogelman told WBZ.
She’s now suing Advantage Sales and Marketing. Fogelman says that Barbuto’s Crohn’s disease counts as a disability, which confers upon her protected status under the Americans with Disabilities Act. Among those protections, Fogelman claims, would be allowing his client to use medicinal marijuana to treat her illness.
Attorney Adam Fine is also on Barbuto’s legal team. He says there are some 12,000 registered medical marijuana patients in the Commonwealth, many of whom might find themselves in Barbuto’s situation.
“I think that a lot of people are unfortunately picking between their job and their health,” Fine says, “and I don’t think that should be the case.”
But former Middlesex Assistant District Attorney Jennifer Roman thinks Barbuto might have a hard time proving her Crohn’s disease gives her the legally protected status she’s looking for.
“I think we’re really in this grey area of: is this really discrimination?” Roman asks. “The question is going to become, is she a protected class by virtue of the fact that she has a medical marijuana card? Is she really disabled? Because if she’s really disabled, the law is going to look at it differently than if she’s just a regular person who got discriminated against in her employment situation.”
Roman told WBZ that Advantage Sales and Marketing is legally in the right if the company chooses to enforce a zero-tolerance drug policy, regardless of Massachusetts laws that permit medical marijuana.
“If the employer’s policy is no drugs, medical marijuana card or not, that’s their policy,” Roman says. “And under the law right now, they can make that policy and make it stick.”
WBZ reached out to Advantage Sales and Marketing several times, but did not get a response.