Massachusetts Employment Law Letter

Smoke ’em if you got ’em?

Many residents of the Commonwealth may soon be playing the likes of Bob Marley and Willie Nelson a little louder.  After voters approved a ballot referendum last November, Massachusetts became the 18th state to adopt a medical marijuana law.  The law protects qualifying patients, physicians, and dispensaries from state criminal and civil penalties associated with the medical use of marijuana.  Massachusetts employers are wondering how the new law will affect workplace drug policies and whether they will need to accommodate disabled employees’ marijuana use.  Read on for our take on the reefer madness.

Qualifying use

The Massachusetts Humanitarian Medical Use of Marijuana Act, now part of Massachusetts General Laws at Chapter 369, § 1, protects qualifying patients from state criminal or civil penalties for using marijuana for medical purposes.  The term “Medical use of marijuana” is defined by the statute, and includes the acquisition, cultivation, and possession of marijuana for the purpose of treating “debilitating medical conditions, or the symptoms thereof.”  Debilitating medical conditions include cancer, glaucoma, HIV/AIDS, hepatitis C, amyotrophic lateral sclerosis (“ALS”), Crohn’s disease, Parkinson’s disease, and multiple sclerosis.  In addition, a physician can certify that other conditions are sufficiently debilitating if the patient is suffering from weakness, cachexia, intractable pain or nausea, or strength/ability impairment, and progressing to such an extent that one or more of his or her major life activities is substantially limited.

A patient suffering from a debilitating medical condition can apply to the state Department of Public Health (“DPH”) for a medical marijuana registration card.  The patient also has to submit written certification from a physician to get approved.  Registration cards are good for a year and must be carried at all times when the patient is in possession of marijuana.  The card verifies that the cardholder is a qualifying patient exempt from state criminal and civil penalties for marijuana use.

Burning questions

The big issue for Massachusetts employers is whether they need to alter workplace policies governing drug use in light of the new medical marijuana law.  By now, employers are well aware of their duty to provide reasonable accommodations to handicapped employees.  Could an employer unlawfully fail to accommodate an approved employee if off-site marijuana use is not tolerated?  What about an applicant who fails a pre-employment drug screen because of medicinal marijuana use?  These thorny questions are not answered outright by either the Massachusetts Humanitarian Medical Use of Marijuana statute or the recent regulations promulgated by DPH.

Still illegal under federal law

Before tackling these issues, it is important to point out that the use of marijuana is still illegal under federal law.  The federal Controlled Substances Act (“CSA”) lists marijuana as a Schedule I Drug and does not provide exceptions for medicinal use.  State courts in other jurisdictions have relied on the CSA in ruling that employers need not tolerate marijuana use, pointing out that the activity is still illegal under federal law.  In a recent case from the Colorado Court of Appeals, a quadriplegic employee who was licensed to use medical marijuana was fired for failing a drug test.  The employee sued, claiming his discharge violated a state law that protects employees from discharge when they engage in lawful, off-site activity.  The court ruled that the marijuana use, although permissible under state law, still violated federal law.  Accordingly, the employee was not engaging in “lawful” off-site activity, and his termination was upheld.  Notably, one of the three appellate judges who heard that case issued a stern dissenting opinion in which he argued that the lawfulness of the activity should be measured by state law.  The case will likely make it up to the Colorado Supreme Court.

Similarly, federal laws and regulations require that some employers follow drug testing protocols and implement policies aimed at maintaining a “drug-free” workplace.  Federal contractors are generally required to comply with the Drug-Free Workplace Act of 1988 and the U.S. Department of Transportation regulations require drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.  Because these federal laws preempt (or trump) state laws, employers should stay the course when it comes to enforcing drug-related workplace practices and policies.

Off-site use acceptable?

Unlike Colorado, lawful, off-site conduct is not protected under Massachusetts’ Medical Marijuana Law.  Instead, any challenge to drug-free workplace practices will likely take shape via the state anti-discrimination statute, Mass. Gen. L. ch. 151B (“Chapter 151B”).  Chapter 151B, along with federal law, prohibits discrimination against employees who are disabled, defined as someone who is substantially limited in a major life activity.  It is safe to presume that an employee who has been approved for medical marijuana based on a “debilitating medical condition” will be “substantially limited in a major life activity,” as that definition is quite broad.  These handicapped employees are entitled to reasonable accommodations in the workplace.  The $64,000 question is whether accommodation requests connected to medical marijuana use are reasonable.

Some questions answered, some not so much

The Massachusetts Humanitarian Medical Use of Marijuana statute does address the use of marijuana within the workplace walls.  The law is clear that an employer does not have to accommodate “on-site” use of medical marijuana.  So there is no need to allow employees to light up in the lunch room or bring marijuana brownies for “snack.”  Even so, the law does not mention off-site use.  This may mean, by implication, that a disabled employee’s off-site use will need to be accommodated, assuming the employee’s job performance is not impaired.

Consider, for example, an employee who is suffering from a “debilitating medical condition,” perhaps cancer.  The employee needs to use marijuana in the early morning to help control nausea associated with treatment.  If the employee needs to come in late a few days a week because of off-site marijuana use, should that request be granted?  What if the same employee tests positive in a random drug test?  Can the employer terminate the employee even if there is no other indication that the employee is impaired or “under the influence”?  Clearly, an argument can be made that these accommodations might be reasonable under state law, even if the employer has a zero-tolerance drug policy.  And remember that marijuana use is no longer necessarily criminal:  possession of under an ounce now carries only a civil penalty in Massachusetts.  Of course, there is a chance that a reviewing court would rule that the accommodation request is not reasonable because marijuana use is prohibited by federal law.  The question for employers is simple:  do you want to be the test case in Massachusetts on this unsettled issue?

Bottom line

Employers who are required by federal law and regulation to impose discipline in connection with employee drug use need not consider altering workplace practices just yet.  However, Massachusetts employers who are not subject to such rules should consider accommodating marijuana use when such use occurs off-site and does not negatively impact an employee’s job performance.  This could be considered parallel to an employee who uses pain killers to help with her migraines, a condition that would also possibly require accommodation.

Because this law is new and untested, it is difficult to predict how a state court or administrative agency would handle accommodation issues when medical marijuana use is involved.  The only safe play is to check with employment counsel before taking any adverse employment actions for drug use against an employee who is registered to use medical marijuana.

Article By: John S. Gannon, Esq.
Reprinted from the June 2013 issue of the Massachusetts Employment Law Letter.

John Gannon is an Associate at the firm of Skoler, Abbott & Presser, P.C.  John can be reached at (413) 737-4753 or jgannon@skoler-abbott.com.