Whitney Law Group, LLC Blog
Posts by Mark M. Whitney

'Superman' found at https://flic.kr/p/pWwnZf by tom_bullock (https://flickr.com/people/tombullock) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'Superman' found at https://flic.kr/p/pWwnZf by tom_bullock (https://flickr.com/people/tombullock) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'Superman' found at https://flic.kr/p/pWwnZf by tom_bullock (https://flickr.com/people/tombullock) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Mark Whitney Recognized as a 2019 Massachusetts SuperLawyer

WLG is proud to announce that Mark Whitney has once again been selected by Thompson Reuters as a Massachusetts Super Lawyer. This is Mark's 11th year to be selected for this recognition (2 years as a Rising Star and 9 years as a SuperLawyer) by Thomson Reuters’ SuperLawyer Magazine) in the "Employment Litigation Attorney" category. See SuperLawyer profile here.

'Meeting' found at https://flic.kr/p/bGDA3F by ibm4381 (https://flickr.com/people/j_benson) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'Meeting' found at https://flic.kr/p/bGDA3F by ibm4381 (https://flickr.com/people/j_benson) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'Meeting' found at https://flic.kr/p/bGDA3F by ibm4381 (https://flickr.com/people/j_benson) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Presentation Materials from NBI Seminar "HR Law from A to Z" 11-07-19 (Fairhaven, MA)

Thanks to all who attended my presentations at the NBI "HR Law from A to Z" seminar in Fairhaven, MA (11/07/19).

'Seminar for Diplomats 2019 (01011120)' found at https://flic.kr/p/2h5ADZm by IAEA Imagebank (https://flickr.com/people/iaea_imagebank) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'Seminar for Diplomats 2019 (01011120)' found at https://flic.kr/p/2h5ADZm by IAEA Imagebank (https://flickr.com/people/iaea_imagebank) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'Seminar for Diplomats 2019 (01011120)' found at https://flic.kr/p/2h5ADZm by IAEA Imagebank (https://flickr.com/people/iaea_imagebank) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Presentation Materials from NBI "HR Boot Camp" Seminar 11-20-19 (Manchester, NH)

Thanks to all who attended my presentations at the NBI "HR Boot Camp" seminar in Manchester, NH (11/20/19).

'FON Wireless Router' found at https://flic.kr/p/4rmqWq by nrkbeta (https://flickr.com/people/nrkbeta) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)
'FON Wireless Router' found at https://flic.kr/p/4rmqWq by nrkbeta (https://flickr.com/people/nrkbeta) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)
'FON Wireless Router' found at https://flic.kr/p/4rmqWq by nrkbeta (https://flickr.com/people/nrkbeta) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)

Maureen DeSimone Quoted in Mass Lawyer's Weekly Article About Potential Accommodation for Wi-Fi Hypersensitivity

Maureen T. DeSimonewas recently quoted in an article appearing in Massachusetts Lawyers Weekly concerning the limited remedies available to individuals filing Title V relation claims for public accommodation under Title III of the ADA. The article is titled: "Student can’t pursue damages for ADA retaliation."

'Protesting Brett Kavanaugh Chicago Illinois 10-4-18 4354' found at https://flic.kr/p/PApwis by www.cemillerphotography.com (https://flickr.com/people/cemillerphotography) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)
'Protesting Brett Kavanaugh Chicago Illinois 10-4-18 4354' found at https://flic.kr/p/PApwis by www.cemillerphotography.com (https://flickr.com/people/cemillerphotography) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)
'Protesting Brett Kavanaugh Chicago Illinois 10-4-18 4354' found at https://flic.kr/p/PApwis by www.cemillerphotography.com (https://flickr.com/people/cemillerphotography) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)

Mark Whitney Quoted in Mass Lawyer's Weekly Article About Big Verdict Trends in the #MeToo Era

Mark Whitney was recently quoted in an article appearing in Massachusetts Lawyers Weekly concerning important factors in employment law leading to a recent trend in substantially larger verdicts. The article is titled: "#MeToo, Voir Dire Seen as Part of Big-Verdict Bonanza."

'' found at  by  () used under  ()
'' found at  by  () used under  ()
'' found at  by  () used under  ()

Corporate Officers Not Personally Liable for “Unpaid Wages” due to Surpise Company Shut-Down

The Federal Worker Adjustment and Retraining Notification Act, U.S.C. §§ 2101-2109 (the “WARN Act”), allows employees to sue employers who fail to provide them with 60 days’ advance notice of the company’s shutdown or “mass” layoffs, which are specifically defined in the law. The 60-day notice period is intended to provide employees transition time to adjust to the prospective loss of employment. The WARN Act applies to companies with 100 or more employees.

'At The Window' found at https://flic.kr/p/h1isEs by Donald Lee Pardue (https://flickr.com/people/oldrebel) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'At The Window' found at https://flic.kr/p/h1isEs by Donald Lee Pardue (https://flickr.com/people/oldrebel) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'At The Window' found at https://flic.kr/p/h1isEs by Donald Lee Pardue (https://flickr.com/people/oldrebel) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Important Changes Take Effect January 1st for Mass. Hourly Wage Law

Effective January 1, 2019, important changes take effect concerning the payment of hourly wages in Massachusetts. Both employers paying and employees earning minimum wage, especially retail employees who work on Sundays and tipped employees, should take note of these changes:

'' found at https://flic.kr/p/9c1PdF by thevelvetbird (https://flickr.com/people/thevelvetbird) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'' found at https://flic.kr/p/9c1PdF by thevelvetbird (https://flickr.com/people/thevelvetbird) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'' found at https://flic.kr/p/9c1PdF by thevelvetbird (https://flickr.com/people/thevelvetbird) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Massachusetts Enacts Pregnant Workers' Fairness Law

On April 1, 2018, the Massachusetts Pregnant Worker Fairness Act (“PWFA”) went into effect. This new law mandates a variety of workplace accommodations for expecting and new mothers and ensures that they should not be subject to discrimination in relation to their pregnancy.

'' found at  by  () used under  ()
'' found at  by  () used under  ()
'' found at  by  () used under  ()

Mark Whitney Recognized as a 2018 Massachusetts SuperLawyer

WLG is proud to announce that Mark Whitney has once again been selected by Thompson Reuters as a Massachusetts Super Lawyer. This is Mark's 10th year to be selected for this recognition (2 years as a Rising Star and 8 years as a SuperLawyer) by Thomson Reuters’ SuperLawyer Magazine) in the "Employment Litigation Attorney" category.

'marijuana 2' found at https://flic.kr/p/7JCKGz by katherine_hitt (https://flickr.com/people/milkwhitegown) used under Creative Commons Attribution-NoDerivs License (http://creativecommons.org/licenses/by-nd/2.0/)
'marijuana 2' found at https://flic.kr/p/7JCKGz by katherine_hitt (https://flickr.com/people/milkwhitegown) used under Creative Commons Attribution-NoDerivs License (http://creativecommons.org/licenses/by-nd/2.0/)
'marijuana 2' found at https://flic.kr/p/7JCKGz by katherine_hitt (https://flickr.com/people/milkwhitegown) used under Creative Commons Attribution-NoDerivs License (http://creativecommons.org/licenses/by-nd/2.0/)

Employees Can Still Be Fired for Legal Recreational Marijuna Use

As a recent Boston Globe article highlights, the impact of laws legalizing the use of recreational marijuana on the workplace remain unsettled. The Globe article discusses a woman who regularly -- and legally -- used marijuana outside of work, but tested positive for marijuana after she suffered a fall at work.

Mark Whitney Recognized as a 2019 Massachusetts SuperLawyer

'Superman' found at https://flic.kr/p/pWwnZf by tom_bullock (https://flickr.com/people/tombullock) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

WLG is proud to announce that Mark Whitney has once again been selected by Thompson Reuters as a Massachusetts Super Lawyer. This is Mark's 11th year to be selected for this recognition (2 years as a Rising Star® and 9 years as a SuperLawyer®) by Thomson Reuters’ SuperLawyer Magazine) in the "Employment Litigation Attorney" category.  See SuperLawyer profile here.

Attorneys recognized by Super Lawyers have distinguished themselves in their legal practices based on the directory's independent research, as well as peer nominations and peer evaluations.

Only five percent of lawyers in each state are selected to the Super Lawyers list and 2.5 percent to the Rising Stars list annually.

Presentation Materials from NBI Seminar "HR Law from A to Z" 11-07-19 (Fairhaven, MA)

'Meeting' found at https://flic.kr/p/bGDA3F by ibm4381 (https://flickr.com/people/j_benson) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Thanks to all who attended my presentations at the NBI "HR Law from A to Z" seminar in Fairhaven, MA  (11/07/19).  

I spoke on the topics of:

You can click on the links above to download the materials.

Presentation Materials from NBI "HR Boot Camp" Seminar 11-20-19 (Manchester, NH)

'Seminar for Diplomats 2019 (01011120)' found at https://flic.kr/p/2h5ADZm by IAEA Imagebank (https://flickr.com/people/iaea_imagebank) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Thanks to all who attended my presentations at the NBI "HR Boot Camp" seminar in Manchester, NH (11/20/19).  

I spoke on the topics of:

You can click on the links above to download the materials.

Maureen DeSimone Quoted in Mass Lawyer's Weekly Article About Potential Accommodation for Wi-Fi Hypersensitivity

'FON Wireless Router' found at https://flic.kr/p/4rmqWq by nrkbeta (https://flickr.com/people/nrkbeta) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)

Maureen T. DeSimone was recently quoted in an article appearing in Massachusetts Lawyers Weekly concerning the limited remedies available to individuals filing Title V relation claims for public accommodation under Title III of the ADA. The article is titled: "Student can’t pursue damages for ADA retaliation."

The article starts by reviewing the facts of a case of first impression in front of the First Circuit Court of Appeals. In G., et al. v. The Fay School, et al., Plaintiff, a student at the Fay School in Southborough, MA, where he previously attended, claimed the school failed to accommodate his electromagnetic hypersensitivity when they refused to remove Wi-Fi from the school. All of Plaintiff’s claims were dismissed or were deemed “moot” because he had left the school.

The article then discusses how the court of appeals addressed the issue (one of first impression) whether monetary damages were available under a “Title V retaliation claim based on an exercise of rights under Title III of the ADA.” Under a very strict reading of the language in the ADA statute, the court determined that the only remedy available to Title III claims were injunctions. Plaintiff had already completed 9th grade at another school and because 9th grade was the last year a student could attend The Fay School, the remedy of an injunction was moot (Plaintiff conceded this fact). Thus, no remedy was available to Plaintiff.

Click here to read the full article on-line (subscription required).


Mark Whitney Quoted in Mass Lawyer's Weekly Article About Big Verdict Trends in the #MeToo Era

'Protesting Brett Kavanaugh Chicago Illinois 10-4-18 4354' found at https://flic.kr/p/PApwis by www.cemillerphotography.com (https://flickr.com/people/cemillerphotography) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)

Mark Whitney was recently quoted in an article appearing in Massachusetts Lawyers Weekly concerning important factors in employment law leading to a recent trend in substantially larger verdicts.  The article is titled: "#MeToo, Voir Dire Seen as Part of Big-Verdict Bonanza."  

The article starts by reviewing the uptick in huge jury verdicts in employment discrimination cases, including a recent $28 Million verdict won by a Haitian-American nurse against Brigham & Women's Hospital and 8 other 7-figure verdicts obtained in the last 12-18 months in Massachusetts courts. Mark was one of several Boston-area lawyers interviewed for the article to examine what lawyers on the front lines of employment law see as the reasons for the trend.

The article discussed the recent advent of lawyer-conducted voir dire of potential jurors, which lawyers believe provides valuable insight into how jurors think about awarding emotional distress and punitive damages.  Mark described two additional factors he observed as supporting the recent trend in larger verdicts.  First, he has observed a newfound empowerment that he has observed employees feel as a result of the #MeToo movement.  Second, Mark has encountered a universe of people who may later become defendants in employment lawsuits by “following the President’s lead,” thinking they don’t have to be “PC” anymore and instead can be brash and obnoxious in the workplace.  

The article also discussed the apparent increased willingness of jurors to award large emotional distress damages awards in situations that are not supported by substantial medical documentation, as well as the recent decrease in discrimination claim filings at state and federal agencies.  Mark attributed the latter to the strong economy, but also predicted an explosion of claims when the economy inevitably dips.

Click here to read the full article on-line (subscription required).

Corporate Officers Not Personally Liable for “Unpaid Wages” due to Surpise Company Shut-Down

'' found at  by  () used under  ()

The Federal Worker Adjustment and Retraining Notification Act, U.S.C. §§ 2101-2109 (the “WARN Act”), allows employees to sue employers who fail to provide them with 60 days’ advance notice of the company’s shutdown or “mass” layoffs, which are specifically defined in the law. The 60-day notice period is intended to provide employees transition time to adjust to the prospective loss of employment. The WARN Act applies to companies with 100 or more employees.

Judgments pursuant to the WARN act, consisting of damages in the form of back pay and employee benefits covering each day of the notice violation, can amount to millions of dollars. However, a company’s officers are not individually liable for judgments against the company. Of course, plaintiffs would like to have recourse against officers when a company is insolvent or is otherwise incapable of satisfying its creditors. Until recently, it seemed that one such recourse might be the Massachusetts Wage Act, M.G. L. c. 149, § 148 (the “Wage Act”), which imposes personal liability on corporate officers for a company’s failure to pay earned wages.  The Wage Act is a particularly harsh statute, because it mandates payment of triple the unpaid wages plus payment of the plaintiffs’ attorney’s fees.

This case arose from financial troubles experienced by ISIS Parenting, Inc. (“ISIS”). In January 2014, the officers of ISIS abruptly shut down the company and notified all 200 employees that their employment had terminated effective immediately.  The announcement stunned the employees and clients of ISIS. Click here and here to learn more about the failure of ISIS.  Because ISIS provided no advance warning of the shutdown, the former employees obtained a $2 Million judgment against the company under the WARN Act. Because the company was insolvent, it did not even try to defend the WARN Act lawsuit.

After obtaining no relief in the WARN Act case, the group of ISIS former employees tried a different approach and filed suit against the former corporate officers if ISIS under the Wage Act.  In the case of Jillian Calixto, et al. v. Heather Coughlin, et al., plaintiffs sought to have their $2 Million judgment, awarded in a prior lawsuit under the WARN Act, deemed wrongfully withheld “earned wages” under the Wage Act. If successful, the plaintiffs would be able to hold the company’s officers personally liable for 3 times the unpaid wages plus payment of their attorneys’ fees. The officers moved to dismiss the plaintiff’s case.  The trial court granted the motion to dismiss, and the plaintiffs appealed.

The Massachusetts Supreme Judicial Court (“SJC”), the highest-level appeals court in the Commonwealth, dismissed plaintiffs’ complaint and held that WARN Act damages do not constitute “earned wages” under the Wage Act. The Court based its decision on the meaning of “earned wages,” which it defined to be wages that an employee had “secured by virtue of work or service actually performed,” and which, according to the SJC, did not encompass WARN Act damages, which are damages for failing to provide sufficient notice of a mass layoff or company closing. In other words, WARN Act damages do not cover actual work performed by employees; rather, it covers the post-termination period when employees were subjected to a surprise layoff and therefore not working. The Court also noted that characterizing WARN Act damages as “back pay” did not alter its analysis, because back pay normally compensates plaintiffs for wages that they would have earned if they had continued working.

As a result of the SJC’s holding, corporate officers in Massachusetts can take comfort in knowing that they cannot be held personally liable for their failure to provide the 60-day required notice under the WARN Act. This means that, in cases of exigency, companies may shut down without fear of their senior executives being held liable for the unpaid wages that would have been paid during the 60-day WARN Act notice period.

This case also presents important reminders for employers:

  • remember to seek help from legal counsel if considering a large-scale layoff or company shut-down -- the WARN Act is complex, and sometimes layoffs as small as 50 employees can trigger liability;
  • employers must always remain cognizant of the Wage Act, because it requires employers to pay employees their earned wages -- don’t let employees work and then fail to pay them;
  • the Wage Act has strict requirements for when to pay a terminated worker -- workers who resign can be paid in the next regular payroll, but involuntary terminations require payment on the day of termination, including pay for accrued but unused vacation time.

Image credit:  by geralt used under Pixabay License

Important Changes Take Effect January 1st for Mass. Hourly Wage Law

'At The Window' found at https://flic.kr/p/h1isEs by Donald Lee Pardue (https://flickr.com/people/oldrebel) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Effective January 1, 2019, important changes take effect concerning the payment of hourly wages in Massachusetts. Both employers paying and employees earning minimum wage, especially retail employees who work on Sundays and tipped employees, should take note of these changes:

  • The mandatory minimum wage increases from $11/hour to $12/hour.
    • This rate will continue to rise each year until it reaches $15/hour in January 2023.
  • The minimum wage for tipped employees increases from $3.75/hour to $4.35/hour.
    • This rate will increase in steps until it reaches $6.75/hour in January 2023.
    • It is always important to remember for tipped employees paid at the lower hourly "tip" rate that their combined tips and hourly wages must equate to at least the applicable regular minimum wage. If the employee's pay equates to a rate lower than minimum wage the employer must pay the difference. Many employers fail to meet this standard.
  • For retail employees, the mandatory Sunday work overtime rate reduces from 1.5 x the employee's regular rate to 1.4 times the employee's regular rate.

For more information about the impending changes to the Massachusetts minimum wage laws, click here. For more information about WLG's wage and hour law practice, click here.

Employers who fail to adhere to these changes run the risk of the strict penalties afforded under the Massachusetts Wage Act, which include mandatory triple damages, required payment of the prevailing plaintiff's attorneys' fees, and interest.

Massachusetts Enacts Pregnant Workers' Fairness Law

'' found at https://flic.kr/p/9c1PdF by thevelvetbird (https://flickr.com/people/thevelvetbird) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

On April 1, 2018, the Massachusetts Pregnant Worker Fairness Act (“PWFA”) went into effect. This new law mandates a variety of workplace accommodations for expecting and new mothers and ensures that they should not be subject to discrimination in relation to their pregnancy.

The bill provides pregnant women reasonable accommodations including "more frequent or unpaid breaks, time off to recover from childbirth with or without pay, acquisition or modification of equipment, seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and private non-bathroom space for expressing breast milk, assistance with manual labor, or modified work schedules” as long as the accommodation “would not impose undue hardship on the employer.” You can view the full text of the law here.

The Massachusetts Commission Against Discrimination has issued a guidance to assist employers and individuals to understand their rights and obligations under the PWFA.  The MCAD guidance can be found here.

It is worth noting that prior to enactment of the Massachusetts PWFA there were already some legal protections in place for expecting and new mothers.  It was already unlawful to discriminate against someone because of pregnancy under federal and state law.  In addition, the US Department of Labor had issued regulations requiring employers to provide break times and appropriate spaces for new mothers to express milk in the workplace. As emphasized by its drafters, the PWFA focuses on the deficiency in the law that failed to compel an employer to provide “reasonable accommodations” to expecting and new mothers.

The new PWFA:

  • "Provides clarity regarding definitions and terms related to current employees in need of accommodations related to pregnancy.
  • Aligns state and federal laws regarding reasonable accommodation as it relates to the essential functions of the job.
  • Provides flexibility rather than a mandating specific types of accommodations for employers and employees.
  • Provides a reasonable mechanism for employees and the employer to achieve a reasonable accommodation by engaging in a defined process, eliminating a concern by businesses that an employee could reject multiple reasonable offers of accommodation.
  • Adds language allowing the employer to evaluate undue hardship of an accommodation and the ability of employee to perform the essential functions of the job as it relates to an employer’s program, enterprise or business.
  • Provides opportunity for an employer to request documentation for certain cases to ensure that accommodations are reasonable for both employees and employers.
  • Limits provisions to current employees instead of employees and job applicants.
  • Reduces unnecessary burdens and allows for electronic or other means other than a “poster” for notifying employees.
  • Allows for certain accommodations to be either paid or unpaid."


Mark Whitney Recognized as a 2018 Massachusetts SuperLawyer

'' found at  by  () used under  ()

WLG is proud to announce that Mark Whitney has once again been selected by Thompson Reuters as a Massachusetts Super Lawyer. This is Mark's 10th year to be selected for this recognition (2 years as a Rising Star® and 8 years as a SuperLawyer®) by Thomson Reuters’ SuperLawyer Magazine) in the "Employment Litigation Attorney" category.

Attorneys recognized by Super Lawyers have distinguished themselves in their legal practices based on the directory's independent research, as well as peer nominations and peer evaluations.

Only five percent of lawyers in each state are selected to the Super Lawyers list and 2.5 percent to the Rising Stars list annually.

Each candidate is evaluated on 12 indicators of peer recognition and professional achievement, according to the Super Lawyers website. The rating service evaluates attorneys in over 70 practice areas.

Employees Can Still Be Fired for Legal Recreational Marijuna Use

'marijuana 2' found at https://flic.kr/p/7JCKGz by katherine_hitt (https://flickr.com/people/milkwhitegown) used under Creative Commons Attribution-NoDerivs License (http://creativecommons.org/licenses/by-nd/2.0/)

As a recent Boston Globe article highlights, the impact of laws legalizing the use of recreational marijuana on the workplace remain unsettled. The Globe article discusses a woman who regularly -- and legally -- used marijuana outside of work, but tested positive for marijuana after she suffered a fall at work. 

It is important to remember that marijuana is still illegal under U.S. law, so many employers still prohibit the use, possession, or working under the influence of marijuana in their company policies.  A complicating factor is that marijuana stays in the user's bloodstream much longer than alcohol, sometimes for several days or longer depending on the user's amount and frequency of use.  This creates problems with regard to testing and policy enforcement because the employee could have THC in their bloodstream but not be impaired or "high."  

This also puts companies in a tough position with regard to their testing policies, as they may be at risk of losing good employees to other companies that don't test for marijuana.  This is an especially significant quandary in this very tight job market.

Until legislators or the courts provide more clarity, employees who wish to use marijuana outside of work should remain cognizant of their employer's policies on drug use. Employees should understand whether the employers conduct random testing or not, and employees who work in safety-specific jobs (such as forklift operators, air traffic controllers, etc.) need to appreciate that they are most likely to be subject to testing.

Finally, it is important to note that the Massachusetts Supreme Judicial Court has already ruled that employees who use medical marijuana cannot be automatically fired for flunking a drug test.  See Barbuto v. Advantage Sales and Marketing, LLC.  The Court held that employers need to consider medical marijuana as a prescribed drug and evaluate necessary reasonable accommodations surrounding its use. Employers can still take action against a medical marijuana user, but they have to show that they cannot accommodate medical marijuana patients because their cannabis use impairs their ability to do required work, endangers public safety, or otherwise demonstrably endangers the business. In some situations, this will be a difficult burden to meet.