Medical Marijuana and Workplace Law

Vital Signs: Summer 2013

The Massachusetts Act for the Humanitarian Medical Use of Marijuana (Medical Marijuana Law), became effective on January 1, 2013. Regulations issued by the Massachusetts DPH, effective on May 24, 2013, have helped to clarify procedures with respect to the registration of certifying physicians and of qualifying patients and marijuana dispensaries.

However, the regulations do not provide much guidance with regard to the effect that the law has on related state and federal law and policy, including employment law and workplace drug use policies.
The law and its associated regulations state that, “[n]othing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment […].” Accordingly, employers may still lawfully prohibit employees from using marijuana at work and may discipline employees who violate such prohibition, in spite of the fact that the drug use may be sanctioned under state law.

There is also nothing in the Medical Marijuana Law that prevents employers from prohibiting employees from working while under the influence of marijuana. The Americans with Disabilities Act (ADA) does not require an accommodation for the use of drugs that are illegal under federal law.

While it’s possible Massachusetts’ anti-discrimination laws could require employers to tolerate medical marijuana use by employees in the future, neither the courts nor the Massachusetts Commission Against Discrimination have offered guidance on the matter.

The Massachusetts Medical Marijuana Law and regulations are silent on an employer’s rights and obligations toward medical marijuana users with regard to drug-testing policies. While such policies have yet to be tested in Massachusetts courts, courts in other states with legalized medical marijuana have consistently found that employers may continue to enforce pre-employment drug-testing policies that screen for the use of drugs, including marijuana. Such courts have also upheld the employer’s right to terminate a current employee who tests positive for use of medical marijuana, whether or not the employee was working while under the influence. Although the Massachusetts Medical Marijuana Law, like other medical marijuana laws, prevents criminal or civil prosecution under state law, it does not prevent employers from disciplining or taking other action against an employee using marijuana for medical purposes.

As it appears that the Marijuana Law had little effect on the laws governing employer drug-testing and drug use policies, physicians and patients should carefully consider the implications of medical marijuana use in the employment setting. As employers and employees, physicians should review drug-related employment policies and procedures with their attorneys to ensure compliance, as the Commonwealth’s legal landscape continues to evolve in the wake of the Medical Marijuana Law.

— William Frank, Esq.

The “Law and Ethics” column is provided for educational purposes and should not be construed as legal advice. Readers with specific legal questions should consult with a private attorney.

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