Burning Question-What Does the State’s New Medical-marijuana Law Mean for Area Employers?

Last November, Massachusetts became the 18th state to adopt a medical-marijuana law after voters approved a ballot referendum. 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.

Here’s what they need to know.

The Massachusetts Humanitarian Medical Use of Marijuana statute paves the way for patients to use and possess 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 conditions that substantially limit a major life activity.

Patients suffering from a debilitating medical condition can apply to the state Department of Public Health (DPH) for a medical-marijuana registration card by submitting a written certification from a physician with their application. The registration card verifies that the cardholder is a qualifying patient exempt from state criminal and civil penalties for marijuana use.

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 should be well aware of their duty to provide reasonable workplace 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 medical-marijuana use or who tests positive for drugs in a drug test after employment?

These thorny questions are not answered outright by the Massachusetts Humanitarian Medical Use of Marijuana statute or by recent regulations promulgated by the DPH.

It’s important to note that the use of marijuana is prohibited by federal law, which lists marijuana as a Schedule I drug and does not provide exceptions for medicinal use. State courts in other jurisdictions have relied on federal law in ruling that employers need not accommodate marijuana use, pointing out that the activity is still illegal under federal law.

Similarly, certain federal laws and regulations require particular employers to follow drug-testing protocols and implement policies aimed at maintaining a drug-free workplace. Because these federal laws pre-empt (or trump) state laws, employers should continue to follow these laws when it comes to enforcing drug-related workplace practices and policies.

In Massachusetts, any challenge to drug-free workplace practices will likely take shape via the state anti-discrimination statute (Chapter 151B). This measure, along with federal law, prohibits discriminating against employees who are ‘handicapped,’ which is defined by law as being substantially limited in a major life activity. It’s safe to presume that an employee suffering from a ‘debilitating medical condition’ could be considered handicapped and entitled to a reasonable accommodation in the workplace.

The $64,000 question is whether accommodation requests connected to medical-marijuana use are reasonable.

The Massachusetts Humanitarian Medical Use of Marijuana statute makes it 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 lunchroom or bring marijuana brownies to work. Even so, the law does not address off-site use.

Consider, for example, an employee who is suffering from a debilitating medical condition, perhaps cancer, and who has been approved to use marijuana to help control nausea associated with treatment. Should that employee be allowed to come in late a few days a week because of the off-site marijuana use? It’s possible that such an accommodation might be reasonable under state law, even if the employer has a zero-tolerance drug policy.

What if the employee is subjected to drug testing and tests positive because of his medical use of marijuana? In other jurisdictions where these issues have arisen, courts have ruled that the employer did not have to excuse the use of an illegal drug, and it’s possible that a Massachusetts court would agree. But because this law is new and untested, it’s difficult to predict how a state court or administrative agency would handle these issues.

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.  v

John Gannon is an attorney at the management-side labor and employment firm Skoler, Abbott & Presser, P.C.; (413) 737-4753; jgannon@skoler-abbott.com;